Bike photos by Steve Magas, a race in Walnut Hills, a bike rack at Ride Cincinnati, A ghost bike dedication ceremony and a beautiful bike bell

Protecting The Rights Of Those Who Ride

Steve Magas is Ohio's Bike Lawyer. He has written about Ohio Bike Laws, bike crashes, bicycle advocacy and court cases for some 30 years. Soon we'll be adding a series of features about your favorite Ohio bike shops.

OHIO’S BIKE LAWS

OHIO BIKE LAWS

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

Have you ever wondered what “The Law” actually SAYS about riding a bicycle?  Many Ohio riders are familiar with some of the common rules or phrases.  The “AFRAP” rule, for example.  Many of us also have a sense that we have a “right” to ride our bicycles on the roadway, but where does that right come from? What limitations are there on that right? Can that right be taken away? Can cities pass their own bike laws? Can those be different from State Law?

A few years ago, a number of us on the Board of the Ohio Bicycle Federation took on the challenge of listing the most important laws applicable to cyclists in Ohio.  You can read the actual results of our efforts on the OBF’s website.

Below are annotated excerpts of laws that EVERY Ohio Cyclist should be familiar with – at least those who want to venture out on the roadway. I’ve highlighted in bold some of the most critical language and have added my own commentary in italics to the original OBF commentary.

 

Where to start? Why at the beginning of course – with Title 45 of the Ohio Revised Code. “Title 45” contains the laws that govern operation of all vehicles on Ohio roads, including bicycles.  The laws describe what a driver is required to do or prohibited from doing. But laws do not tell people how to drive.  That is the function of a driver’s manual.

 

You can find ALL Ohio laws in the Ohio Revised Code, and the Traffic Laws in Title 45.  If you actually go to the library and want to pull the books off the shelf, the entire Ohio Revised Code is a huge set of bright red books. The traffic laws are found in Title 45. Chapter 4511 of Title 45 contains the “Rules of the Road” and Chapter 4513 has the equipment rules.

 

Be warned, though, that these are only the STATE laws.  There are 88 counties in Ohio and hundreds of cities, villages, and other political jurisdictions. Each political body can and does pass its own laws.  You will find local laws governing bicycle riding in many of these municipalities.

 

Below – after the Law discussion –I am including a discussion of this “Home Rule” issue… however, Bottom Line, ALWAYS CONSULT LOCAL LISTINGS for additional laws applicable in your neighborhood!

 

SO, without further ado, I present….. Ohio’s Bike Laws…

OHIO REVISED CODE

TITLE 45

  • 4501.01.  Definitions. As used in this chapter and Chapters 4503., 4505., 4507., 4509., 4511.,4513., 4515., and 4517. of the Revised Code, and in the penal laws, except as otherwise provided:

(A)”Vehicle” means every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway, except that “vehicle” does not include any motorized wheelchair, any electric personal assistive mobility device, any device that is moved by power collected from overhead electric trolley wires or that is used exclusively upon stationary rails or tracks, or any device, other than a bicycle, that is moved by human power.

***

(G) “Bicycle” means every device, other than a tricycle designed solely for use as a play vehicle by a child, propelled solely by human power upon which any person may ride having two tandem wheels, or one wheel in the front and two wheels in the rear, or two wheels in the front and one wheel in the rear, any of which is more than fourteen inches in diameter.

Comment: A History Lesson is in order here.  In the 1880’s bicycle operators wielded a LOT of political power.  The “Good Roads Movement” was an organized political effort to force municipalities to pave roads.  Farmers and cyclists banded together with some business interests, but cyclists led the way. The newly formed “League of American Bicyclists” developed a following of more than 1,000,000 very quickly.  Courts began to recognize cyclists as having rights on the roadways, particularly when those new-fangled MOTOR vehicles started popping up!

In the late 1800’s the very first Vehicle Codes started to be written to try to put some order on the roadways.  In virtually every case, including Ohio, a “bicycle” was included in the definition of “vehicle”  and was recognized as having a right to the roadway. Certain special provisions for bikes were put into play, but all in all, cyclists used their political clout to get us a spot on the pavement!

In Ohio, a bicycle is defined as a vehicle and thus is governed by a uniform set of rules common to all vehicles and a small set of specific rules for bicycles.  (There are other specific rules for other vehicle types, such as trucks or busses.)  The definition of what types of things are “bicycles” was recently revised to be broader in scope.  The annotated list below summarizes the most important parts of the traffic rules and equipment rules that govern bicycle driving.  People who try to make up their own rules have an accident rate five times higher than knowledgeable cyclists who follow the rules of the road.

  • 4511.07.  Local traffic regulations. (A) Sections 4511.01 to 4511.78, 4511.99, and 4513.01 to 4513.37 of the Revised Code do not prevent local authorities from carrying out the following activities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power:

***

(8) Regulating the operation of bicycles: provided that no such regulation shall be fundamentally inconsistent with the uniform rules of the road prescribed by this chapter and that no such regulation shall prohibit the use of bicycles on any public street or highway except as provided in section 4511.051 of the Revised Code;

(9) Requiring the registration and licensing of bicycles, including the requirement of a registration fee for residents of the local authority;

(B) No ordinance or regulation enacted under division (A)(4), (5), (6), (7), (8), or (10) of this section shall be effective until signs giving notice of the local traffic regulations are posted upon or at the entrance to the highway or part of the highway affected, as may be most appropriate.

Comment: When we looked at the state of the law in preparing the 2006 Better Bicycling Bill, there was a lot of discussion of the patchwork quilt of local laws that all of us faced.  In the Cincinnati area alone, there are more than FORTY separate jurisdictions capable of passing “bike laws.”  The number near Cleveland was even higher.  Since there was no restriction on what those laws could say, we often found neighboring cities would have wildly different “bike laws.” Not only did this make it difficult for cyclists to know and obey local law, it just didn’t make sense.

The most important of the reforms passed in the 2006 Better Bicycling Bill requires that any local regulations be consistent with the uniform rules of the road.  In addition, signs are required to tell of any permitted local regulations.  Unfortunately, some communities have been very slow to remove non-conforming ordinances that mandate unsafe practices.

  • 4511.22.  Slow Speed

(A) No person shall stop or operate a vehicle, trackless trolley, or street car at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.

***

(C) In a case involving a violation of this section, the trier of fact, in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator.

Comment: The “slow speed” statute was amended in 2006 as the result of a case I handled – State v. Selz.  In the Selz case, Steve Selz was a true “transportation cyclist” – he owned no car and went everywhere by bike.  In 1999, Steve was riding on S.R. 44 in Trotwood – a 5 lane, 45 mph roadway.  After stopping at a light, Steve pedaled off in the right lane, with cars behind him.  A police officer didn’t like seeing the cars behind him and pulled him over, citing him for “impeding traffic.”

I took the case pro bono, to try to help Steve out.  At trial, we presented expert testimony that what Steve did was perfectly appropriate and that his speed was appropriate FOR A CYCLIST.  The prosecution argued that if he could not travel at the 45 mph speed limit, he shouldn’t be on the road blocking “traffic.”  I argued that under the definition of traffic in the Revised Code, Steve WAS “traffic” just like any slow moving vehicle.

The trial judge disagreed and found Steve Guilty.  We appealed and, with the help of the OBF, publicized Steve’s case through the Internet.  Trotwood got emails from all over the WORLD chastising it for prosecuting Steve.  We won a 2-1 decision on appeal, with the court holding that in analyzing an “impeding traffic” charge, the court must consider the capabilities of the vehicle and its operator.  Since the officer conceded that Steve was going at a reasonable speed for a cyclist, the court overturned the conviction.

When we looked at the state of the law in preparing the 2006 Better Bicycling Bill, we thought it would be important to change the “Slow Speed” statute to incorporate the holding of State v. Selz and the highlighted language was added.

  • 4511.25.  Lanes of travel upon roadways of sufficient width.

(A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway except as follows:

(1) When overtaking and passing another vehicle proceeding in the same direction, or when making a left turn under the rules governing such movements;

(2) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;

(3) When driving upon a roadway divided into three or more marked lanes for traffic under the rules applicable thereon;

(4) When driving upon a roadway designated and posted with signs for one-way traffic;

(5) When otherwise directed by a police officer or traffic control device.

(B)(1) Upon all roadways any vehicle or trackless trolley proceeding at less than the prevailing and lawful speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, and far enough to the right to allow passing by faster vehicles if such passing is safe and reasonable, except under any of the following circumstances:

(a) When overtaking and passing another vehicle or trackless trolley proceeding in the same direction:

(b) When preparing for a left turn;

(c) When the driver must necessarily drive in a lane other than the right-hand lane to continue on the driver’s intended route.

(B)(2) Nothing in division (B)(1) of this section requires a driver of a slower vehicle to compromise the driver’s safety to allow overtaking by a faster vehicle.

Comment: Section 4511.25(A) is a general rule that applies to all vehicles, including bicycles.  Some people think it is safer to ride on the left to “see traffic coming”.  This is illegal and wrong!  Pedestrians walk facing traffic so they can sidestep off the road if necessary.  But you cannot sidestep a bike.  Riding on the left is both illegal and dangerous.  Crash statistics show that wrong way riding has about 3½ times the risk as riding on the right.

Section 4511.25(B) simply means that slower vehicles should not unnecessarily delay faster traffic.  (See also § 4511.55 below.)  The language of (B)(2) is important as it gives a bicycle operator the right to make decisions, when being passed, based on safety concerns.

  • 4511.27.  Overtaking and passing of vehicles proceeding in the same direction. The following rules govern the overtaking and passing of vehicles or trackless trolleys proceeding in the same direction:

(A) The operator of a vehicle or trackless trolley overtaking another vehicle or trackless trolley proceeding in the same direction shall … pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle or trackless trolley.

(B) Except when overtaking and passing on the right is permitted, the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle at the latter’s audible signal, and he shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.

Comment: Since cyclists usually ride near the right side of the road, beginners are tempted to pass slow or stopped traffic on the right, especially in a “bicycle lane” with a painted line.  Passing on the right is often dangerous and, in many cases, illegal.

There is a move afoot to add a “three foot rule” to the passing law.  In 2009 a bill was introduced into the Ohio legislature [HB 174] which would establish a safe passing distance of “not less than three feet” whenever a motor vehicle overtakes a bicycle.  In 2013 another bill was introduced, but it died in the Ohio Senate. In 2015 the bill was re-introduced again.  This time we think the bill has some legs.  At this writing [June 2015], the bill is expected to move out of Committee and to the floor of the House in the next week or so. Hopefully, by the NEXT time I edit this page the bill will have become law. I have testified several times in Columbus on “bike” bills, and hope to do so again on this one.

  • 4511.31.  Hazardous zones

(A) The department of transportation may determine those portions of any state highway where overtaking and passing other traffic or driving to the left of the center or center line of the roadway would be especially hazardous and may, by appropriate signs or markings on the highway, indicate the beginning and end of such zones. …

(B) Division (A) of this section does not apply when all of the following apply:

(1) The slower vehicle is proceeding at less than half the speed of the speed limit applicable to that location.

(2) The faster vehicle is capable of overtaking and passing the slower vehicle without exceeding the speed limit.

(3) There is sufficient clear sight distance to the left of the center or center line of the roadway to meet the overtaking and passing provisions of section 4511.29 of the Revised Code, considering the speed of the slower vehicle.

Comment: Section 4511.31(B) should help reduce tension between cyclists and faster drivers.  Now, they can pass in “no passing” zones IF passing is safe and the three elements of Section (B) are met.  This was an important addition to the law which we incorporated in the 2006 Better Bicycling Bill.

  • 4511.36.  Rules for turns at intersections. The driver of a vehicle intending to turn at an intersection shall be governed by the following rules:

(A) Approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.

(B) At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersection and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered.  Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.

Comment: The rules for turns are exactly the same for bicycles as for other vehicles – merge to the appropriate position (right for right turns, left for left turns), yield to any traffic that has the right of way and then turn.  A cyclist also has the option to make turns as a pedestrian by dismounting and walking the bicycle through the intersection.

Getting into position for a left turn may involve merging across lanes of traffic.  If traffic is heavy, you should start doing this early to take advantage of gaps in traffic.  Otherwise, there may not be a gap when you need it.  Beginners, who have not yet developed the skill to merge in traffic, may make pedestrian-style turns instead.

Interesting to note the use of that word, “Practicable.”  It comes up below in one of the most important rules of the road for cyclists, yet is completely UNDEFINED in the Ohio Revised Code.  If you do a search of the entire O.R.C. for the word, you get 24PAGES of “hits.”  Obviously, it’s a word the legislature likes~!

In most laws, the use of the word “practicable” comes in the phrase “as soon as practicable” and defines a time when some act must be completed.  Another use is found in the Rules for Use of Alternating Current”  in MINES [
§ 1567.17] as follows: If feed wires are installed in entries that are not equipped with trolleys, they are to be installed as close to the rib as practicable.

Clearly “practicable” has a meaning that includes SAFETY built into it.  This is what I have been arguing for years.

  • 4511.39.  Turn and stop signals. No person shall turn a vehicle or trackless trolley or move right or left upon a highway unless and until such person has exercised due care to ascertain that the movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided.

When required, a signal of intention to turn or move right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle or trackless trolley before turning, except that in the case of a person operating a bicycle, the signal shall be made not less than one time but is not required to be continuous.  A bicycle operator is not required to make a signal if the bicycle is in a designated turn lane, and a signal shall not be given when the operator’s hands are needed for the safe operation of the bicycle. …

Comment: Never turn or change lanes without first yielding to any traffic that has the right of way, and give a signal if possible.  However, skip the signal if your hand is needed for control or brakes.

  • 4511.40.  Hand and arm signals. (A) Except as provided in division (B) of this section, all signals required by sections 4511.01 to 4511.78 of the Revised Code, when given by hand and arm, shall be given from the left side of the vehicle in the following manner, and such signals shall indicate as follows:
    (1) Left turn, hand and arm extended horizontally;
    (2) Right turn, hand and arm extended upward;
    (3) Stop or decrease speed, hand and arm extended downward.

(B) As an alternative to division (A)(2) of this section, a person operating a bicycle may give a right turn signal by extending the right hand and arm horizontally and to the right side of the bicycle.

Comment: The right-arm turn signal described in (B) above is more easily understood. This change in the law was brought about in 19__

  • 4511.52.  Bicycles – issuance of ticket – points not assessed.

(A) Sections 4511.01 to 4511.78, 4511.99, and 4513.01 to 4513.37, of the Revised Code that are applicable to bicycles apply whenever a bicycle is operated upon any highway or upon any path set aside for the exclusive use of bicycles.

(B) Except as provided in division (D) of this section, a bicycle operator who violates any section of the Revised Code described in division (A) of this section that is applicable to bicycles may be issued a ticket, citation, or summons by a law enforcement officer for the violation in the same manner as the operator of a motor vehicle would be cited for the same violation.  A person who commits any such violation while operating a bicycle shall not have any points assessed against the person’s driver’s license, commercial driver’s license, temporary instruction permit, or probationary license under section 4510.036 of the Revised Code.

(C) Except as provided in division (D) of this section, in the case of a violation of any section of the Revised Code described in division (A) of this section by a bicycle operator or by a motor vehicle operator when the trier of fact finds that the violation by the motor vehicle operator endangered the lives of bicycle riders at the time of the violation, the court, notwithstanding any provision of the Revised Code to the contrary, may require the bicycle operator or motor vehicle operator to take and successfully complete a bicycling skills course approved by the court in addition to or in lieu of any penalty otherwise prescribed by the Revised Code for that violation.

Comment: 4511.52(A) Means that the standard traffic rules apply to bicycle drivers.  These driving laws allow safe, fast and efficient travel.  Riding on sidewalks or multi-use “bike paths” is moderately safe only if done at slow speeds and extremely carefully.  Riding on paths is popular for recreation but provides only limited utility for transportation.  Path riding is not covered in this digest.  (B) Means that bicycle violators may be ticketed but will not have “points” assessed against any driver’s license, except for a DWI offense.  (C) allows judges to offer a cycling skills course to violators.

  • 4511.54.  Prohibition against attaching bicycles and sleds to vehicles. No person riding upon any bicycle, coaster, roller skates, sled, or toy vehicle shall attach the same or self to any streetcar, trackless trolley, or vehicle upon a roadway.
  • 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.

(B) Persons riding bicycles or motorcycles upon a roadway shall ride not more than two abreast in a single lane, except on paths or parts of roadways set aside for the exclusive use of bicycles or motorcycles.

(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.

Comment: Section 4511.55(A) is one of the most important, and misquoted, bike laws in Ohio.  Many [including police officers] will tell cyclists that they are required to ride “as near as possible” to the curb.  That’s NOT what it says.  The word “practicable” is an odd word, but a word that clearly incorporates the notion of SAFETY.

The new paragraph (C)- added in the 2006 Better Bicycling Bill – should help reduce this confusion.  There are many conditions where it is much safer to ride near the middle of the lane.  It is not obviously not practicable (practice-able) to ride on the far right when passing on the left, or turning left.  As you ride you will need to avoid objects in the gutter, parked cars, moving vehicles, pedestrians, animals, surface or other hazards.  If the travel lane is too narrow for a bicycle and another vehicle to pass safely side by side within the lane you will want to move over and “take” the lane.

Many cycling experts will testify under oath that cyclists should NOT hug the white line, but rather should ride a few feet off the white line.  This makes the bicycle operator more “conspicuous” and keeps a margin of safety to the right for the rider. A cyclist who “hugs the curb” unintentionally invites motorists to pass with unsafe clearance.  I’ve often written that the lane divider, or center lines, are almost like a plate of glass to a motorist passing a cyclist and if the motorist thinks she/he can squeeze in between the cyclist and the divider line, they will do it regularly. Riding a few feet off the white line, or near the middle of a narrow lane helps overtaking motorists realize that they must “break the plane” of glass and use the next lane to pass.

The real purpose of this law is to prevent unnecessary delay to faster traffic.  However, NO law mandates unsafe operation and the phrase as near right as practicable is highly flexible, varying widely according to conditions.  Positions well away from the edge of the road can be in compliance.

Section 4511.55(B) allows riding two abreast.  As a matter of courtesy, not law, I believe cyclists should avoid unnecessary delay to other traffic.  Please be courteous and “single up” when other drivers wish to pass if such passing is safe and reasonable.  By doing so, you cause the meter measuring Public Opinion to slide ever so slightly in our favor!

As a matter of LAW, however, cyclists have the legal right to ride two abreast and NOT give way – at least until a vehicle starts a passing maneuver.  In State v. Patrick, 153 Ohio Misc.2d 20, Tony Patrick and another rider were riding two abreast when a police officer ordered them to get off the road.  They refused and Tony was ultimately stopped, TASER-ed, beaten and arrested by police.  However, the trial judge dismissed all charges holding, in part, that cyclists have the right to ride two abreast.  The judge in that case, a cyclist himself, stated that while cyclists SHOULD display courtesy to motorists, there is no legal requirement that they give way.

There is no violation if any of the following apply:  (1) If there is no traffic being delayed; (2) If the cyclists are traveling as fast as other traffic; (3) If traffic can reasonably pass by using another lane; (4) If the lane is too narrow or it is otherwise unsafe for passing.

  • 4511.56.  Bicycle signal devices.

(A) Every bicycle when in use at the times specified in section 4513.03 of the Revised Code, shall be equipped with the following:

(1) A lamp mounted on the front of either the bicycle or the operator that shall emit a white light visible from a distance of at least five hundred feet to the front and three hundred feet to the sides.  A generator-powered lamp that emits light only when the bicycle is moving may be used to meet this requirement.

(2) A red reflector on the rear that shall be visible from all distances from one hundred feet to six hundred feet to the rear when directly in front of lawful lower beams of head lamps on a motor vehicle;

(3) A lamp emitting either flashing or steady red light visible from a distance of five hundred feet to the rear shall be used in addition to the red reflector.  If the red lamp performs as a reflector in that it is visible as specified in division (A)(2) of this section, the red lamp may serve as the reflector and a separate reflector is not required.

(B) Additional lamps and reflectors may be used in addition to those required under division (A) of this section, except that red lamps and red reflectors shall not be used on the front of the bicycle and white lamps and white reflectors shall not be used on the rear of the bicycle.

(C) A bicycle may be equipped with a device capable of giving an audible signal, except that a bicycle shall not be equipped with nor shall any person use upon a bicycle any siren or whistle.

(D) Every bicycle shall be equipped with an adequate brake when used on a street or highway.

Comment: An unseen cyclist is in great danger.  According to the Ohio Dept. of Public Safety data for 2007, about 62 percent of fatal bicycle crashes in Ohio occur during non-daylight hours (even though few cyclists ride then).   The reflectors that come with new bikes are grossly inadequate for nighttime visibility.  Always use both a headlight and taillight when you ride in the dark.

  • 4511.711.  Driving upon sidewalk area. No person shall drive any vehicle, other than a bicycle, upon a sidewalk or sidewalk area except upon a permanent or duly authorized temporary driveway.

Nothing in this section shall be construed as prohibiting local authorities from regulating the operation of bicycles within their respective jurisdictions, except that no local authority may require that bicycles be operated on sidewalks.

Comment: Sidewalk riding is controversial.  In the 2006 Better Bicycling Bill we added the highlighted language to this code section.  We felt it was EXTREMELY important to make sure local authorities knew that they could not “ban” bicycle operation by mandating that bicycles only be ridden on the sidewalk.  By the same token, we did not want to prevent communities from banning sidewalk riding.

Sidewalk riding is generally more dangerous than riding on the roadway.  Accident studies show that even low-speed sidewalk riding has about double the accident rate as riding on the road.  The danger increases with speed.  If you ride on the sidewalk, every intersection and even every driveway is a potential collision site.  Motorists crossing your path do not look for conflicting traffic on the sidewalk, especially if you are coming from the “wrong way”.

While there is no statewide ban on sidewalk riding, there are MANY jurisdictions that have some sort of sidewalk ban in place.  In some cities, you are just flat out banned from riding a bike on the sidewalk.  Some ban riding in a defined “business district” and others take the approach of banning riders over a certain age from riding on the sidewalk, while allowing young children to ride. As always, consult local listings for the laws in place near YOU.

 

 

HOME RULE

 

As I pointed out above, Ohio cities have the power to draft their own laws – including traffic laws, and “bike laws.” Historically, we have had problems develop when neighboring cities passed conflicting laws governing bicycle operation.

 

In 2006, the Ohio Bicycle Federation developed and pushed through the legislature a series of “Bike Law” reforms that, among other things, prohibited local jurisdictions from passing local bike laws that conflict with state law.

 

I wish I could say “Voila – problem solved” but that’s not the case.

 

Ohio is a “home rule” state. This means our Ohio Constitution allows local jurisdictions a lot of power in passing their own laws. Whenever there’s a conflict between state and local laws someone may file a lawsuit challenging one or the other. Often the city attorney argues that the city has the power to pass laws which differ from state law. These are long, drawn out and EXPENSIVE law suits requiring a tremendous amount of legal work. These battles are usually fought by large corporations or big special interest groups.

 

Two recent examples of “home rule” litigation bear this out. In the “Tow Truck Case – City of Cleveland v. State of Ohio” of 2014, the city of Cleveland had rules for tow truck operators and the state had passed a law giving the Public Utilities Commission of Ohio [PUCO] the exclusive power to regulate “for hire motor carriers.” The state included tow trucks in the definition of “for hire motor carriers.” The City of Cleveland sued the State of Ohio, claiming the state law was unconstitutional based on the constitutional “home rule” provisions. The Ohio Supreme Court agreed – holding that a sentence of state law was unconstitutional and allowing the city to regulate tow trucks.

 

In 2015, “Fracking” laws came under fire. The city of Munroe Falls had long standing laws governing any mining or drilling operations within its boundaries. Later, the state passed laws relative to obtaining mining permits throughout the state. Beck Energy obtained a state permit and started drilling, but was ordered to stop its “fracking” efforts by Munroe Falls based on the city’s mining ordinances. Beck sued…and won. The Supreme Court held that here state law controlled and cities throughout Ohio had no power to control mining within their boundaries.

 

How do Tow Trucks and Mining play into “Bike Laws,” you ask? Well, let’s say your city decides that it is “too dangerous” for you to ride your bike down Main Street during rush hour, so it passes a bike ban. You point out that state law prohibits bike bans. The city says, under Home Rule we can do what we want…

 

Perhaps a better example is the one I encountered in one of my cases. The City of Pickerington, near Columbus, had a law which required cyclists to use a sidewalk if one was adjacent to the road. State law clearly says that cyclists cannot be banned from most roads and that cyclists cannot be forced to use the sidewalk. My client was riding on the road. He was rear-ended by an elderly driver and suffered a severe brain injury. Pickerington Police wrote the report and held my client “at fault” for “riding on the road” when there was an adjacent sidewalk. I reached out to the City Attorney and suggested that the city’s ordinance conflicted with state law. I asked if the city really wanted to get into a long legal battle over this issue – he agreed that it did not. The report was amended to reflect that state law trumped the city ordinance and the crash case proceeded. Had the city not been as cooperative I may have had serious problems in pursuing money damages for a client who did absolutely nothing wrong.

 

[1] Steve Magas, Ohio’s Bike Lawyer, is an avid cyclist and Ohio trial lawyer whose law practice has focused on protecting the rights of riders for more than 30 years.  Steve has handled more than 350 “bike cases,” in which cyclists have been hurt or killed.  Steve also sits on the Board of Trustees of the Ohio Bicycle Federation and regularly publishes articles on the legal aspects of cycling.  Steve co-authored “Bicycling and the Law” with Olympic-cyclist-turned-lawyer, Bob Mionske.  Steve’s practice stretches throughout Ohio and he has represented cyclists in every corner of Ohio– from Cincinnati to Cleveland – Columbus to Portsmouth – Bellefontaine to Marietta – Toledo to Youngstown – Mansfield – Springfield – Akron – Canton – and more.


Mason, Ohio Cops CLEARED in Taser Death

MASON COPS CLEARED IN TASER DEATH

In Mason, Ohio, two officers were confronted with a tough choice in dealing with a struggling man on December 14.  They ended up TASER-ing him, and he ended up dead.

The original story on Channel 5’s website can be viewed here.  I’ve reprinted below.  The latest development is that the two officers have been “cleared” by the prosecutor of any wrong doing – criminal mischief, I suppose.  I’m sure a civil rights case will follow.  The article on cincinnati.com is also posted below or you can read it here.

I’ve been posting a lot of TASER stuff since becoming involved in Tony Patrick’s civil rights case against the officers who TASER-ed him for riding his bicycle on the roadway.  More on that case in a later post.  For now, here are the two stories about the Mason Taser death.

—–From WLWT- Channel 5’s Webpage—–

Posted 12/14/2009 by

A man died Sunday night after Mason police shocked him with a Taser stun gun, officers said.

Investigators said 39-year-old Douglas Boucher had gone to Speedway gas station Saturday night and verbally attacked a cashier, and returned again the following evening and began yelling at her again.

Officers happened to walk into the Reading Road gas station around 11:15 p.m. as Boucher yelled obscene requests at the woman, 20-year-old Christina Hicks, and she asked them to escort him outside.

“He verbally accosted Miss Hicks and in a profane manner, sexual requests being made in profane terms,” said Chief Mike Kelly, of Mason police.

Police said Boucher, who was suspected of being involved in a hit-and-run crash earlier Sunday evening, refused to cooperate and began fighting with officers as they attempted to handcuff him outside.

“The officer attempted to control him by cuffing his wrists,” Kelly said. “In the process, with only one cuff on, Mr. Boucher wrestled away from the officer and struck him in the head with his cuffed hand.”

Boucher then attempted to chase Hicks, police said, and an officer fired the electronic stun gun at him.

Moments later, police said, Boucher stopped breathing and then was rushed to West Chester Medical Center, where he died.

The officer who was hit in the head was taken to Bethesda North Hospital for evaluation, and he was treated and released.

The Warren County coroner said autopsy results were incomplete, and a cause of death would not be determined until toxicology, microscopic and X-ray screens results were available in several weeks.

Both officers involved, Patrolman Daniel Fry and Patrolman Sean McCormick, have been placed on administrative leave during the investigation, which is standard procedure.

Boucher played bass in several area bands, including Hellcat Alley, and is survived by an 8-year-old daughter.

“He was a very passionate person — passionate about his daughter, his music and living life fully,” said his ex-wife, Sheryl Olszewski.

Friends say Boucher was in poor health when he played his last show less than 24 hours before he died.

“I’m just pretty shocked about the whole thing and hearing it just because of the character I know him to be,” band member Kevin Conner said.

Increased Scrutiny

It’s the first local Taser death since Kevin Piskura died after being Tasered by Oxford police last year. The city responded by taking Tasers off the streets.

The coroner later ruled a heart problem and excessive alcohol use combined with the Taser to kill the Chicago man.

After months of study, the city manager has decided to give Tasers back to Oxford officers in January. On the conditions they have additional training and tighter restrictions on when they can be used.

“Anytime you use force there is a possibility injuries can occur. So you try to use the least amount of force to affect that arrest,” Oxford City Manager Douglas Elliott said.

The Mason police chief said there are no plans to take Tasers away from his officers right now.

In 2008, the National Institute of Justice said studies show use of shock devices is not risk free, but exposure is safe in the vast majority of cases.

—–From CINCINNATI.COM———-

Posted 1/27/2009

MASON – Two Mason police officers have been cleared of any wrongdoing in the death of a man who fell and died of a skull fracture after police shot him with a Taser in December.

Warren County Prosecutor Rachel Hutzel determined that a state investigation and evidence in the death of Douglas Boucher of Mason indicate that Officers Daniel Fry and Sean McCormick did not commit a criminal act during the Dec. 13 incident.

In a letter to Mason police dated Jan. 22, Hutzel said her office was closing the case.

Police alleged that Boucher, 39, ran his vehicle into a parked car at his apartment complex, then drove about a mile to the Speedway gas station at Tylersville Road and U.S. 42, where he was harassing a female clerk.

When police arrived because of the disturbance, they said Boucher refused to leave the store and struggled with them.

Boucher was struck with the stun gun after he tried to go after the clerk and hit an officer with a cuffed hand, officials said.


EVER WANTED TO RIDE CROSS COUNTRY?

If you’ve ever wondered what a cross country ride would be like, check out this YouTube video.

The rider, Bret Taylor, apparently had a handlebar-mounted camera that snapped pix along the way.  He set up a six minute slide show of the ride, with a great soundtrack, and put it out there for the world to see.  Its’ VERY cool!  Makes you wonder where those hundreds of millions of people are living!

The route he took was The TransAmerica Trail.  Adventure Cycling put the route together and sells the maps as part of its Adventure Cycling Maps collection.  You can buy all or part of the route.

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The route goes from Virginia to Oregon along a well-researched path that takes you through Kentucky, over the Mississippi at Chester, Illinois,  and into Missouri, Kansas and Colorado before heading north.  You’ll crest the Continental Divide at the Hoosier Pass and head down towards Yellowstone before passing through Adventure Cycling’s headquarters in Missoula, Montana on your way to the west coast.  Make sure to stop in and have Greg Siple take your picture!

Apparently, Bret Taylor did well – he raised $25,000 for the fight against M.S.  Congratulations!  What a cool thing!!

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COURT SAYS COPS CAN’T USE TASERS LIKE CATTLE PRODS

NEW TASER CASE SAYS COPS CAN’T USE TASERS LIKE CATTLE PRODS

{or words to that effect…}

The U.S. 9th Circuit Court of Appeals came out with a Taser ruling that has everyone talking.  In the case, a police officer stopped a man for a seat belt violation.  While the facts are somewhat disputed, the officer ended up Tasering the young man while he was standing 20 feet away.  The young man was unarmed and acting weirdly, but not dangerously, and was not threatening the officer in any way.

Folks are beginning to weigh in on what is perceived to be the impact of this important case.  From Taser.com, we learn that the case really doesn’t change anything or say anything new.  You can read the article on Taser.com’s blog here.

Others think the case is far more significant.  Below is an article from WIREDmagazine which discusses the case and concludes that the case stands for the proposition that officers can no longer use Tasers simply as a behavior modification device to get people to do what they want.

I agree with Wired’s analysis.  A Taser is not a cattle prod designed to keep people moving in the direction police want them to move.  Rather, it is a substantial, painful, dangerous weapon that is a step below deadly force but more significant than a baton or the old “rubber hose!”  The court found that a Taser produces both psychological and physical pain when the barbs hit and the juice is delivered to the body of the target.

Here’s the WIRED article…

The use of Tasers has become increasingly controversial over the last year, following high-profile cases such as the Tasering of a 10-year-old girl who had refused to take a shower and video of a 72-year-old great-grandmother who was Tasered following a driving offense. Now a federal appeals court in San Francisco has set down new rules for when police officers are allowed to use Tasers. In particular, the 9th U.S. Circuit Court of Appeals ruled that Tasers can’t be used simply to force a non-violent person to bend to an officer’s will. The court’s reason was that Taser’s X26 stun gun inflicts more pain than other “non-lethal” options:

The physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that the X26 and similar devices are a greater intrusion than other non-lethal methods of force we have confronted.

The ruling followed a case in which an officer Tasered a man named Carl Bryan after pulling him over for driving with an unbuckled seat belt. Bryan was verbally abusive, but obviously unarmed and non-violent.

The use of Tasers as compliance tools — means for compelling behavior — has generated a huge amount of protest. For many, the famous “Don’t Tase me, bro” incident, in which student Andrew Meyer was Tasered at a political debate, signaled an alarming new form of oppression. (Others have accused Meyer of setting the whole thing up as a stunt.) Perhaps the distinguishing feature of the Taser, compared with other forms of enforcing compliance, is that it can be used with one finger. Police have always been able enforce their wishes using batons or manual force, but a Taser is a much easier option, and perhaps this makes it more prone to abuse. Whether it’s zapping an unruly student protester, an uncooperative 11-year-old or an abusive driver, the trite observation that power corrupts may have some truth here.

“It sounds like this court is attempting to raise the bar for non-lethal use of force,” retired Los Angeles Police Department Captain Greg Meyer told the Los Angeles Times. The ruling specifies that the Taser X26 and similar devices should only be used where there is “strong government interest [that] compels the employment of such force.” This rules out any situation in which there are alternative means of dealing with the situation. Some may see the new ruling as a great step forward for human rights. But there are reasons to be a little more cautious.

A recent study in the American Journal of Public Health looked at 24,000 cases in which police officers had used force, including Tasers, pepper spray, batons and manual methods. After controlling for factors such as the amount of resistance shown by the suspect, the study found that Taser use reduced the overall risk of injury by 65 percent. In other words, restricting Taser use could triple the number of injuries caused in this sort of incident.

It would be naïve to assume that there will not be any market response to the ruling. We have recently seen a rash of new devices aimed at police forces, including assorted laser dazzlers and pepper ball guns as Taser alternatives. There are also portable pain beams in prospect, both microwave and infrared laser varieties, not to mention various acoustic blasters. The ruling is likely to lead to more experimentation, both technical and in the courts, to find out just what the acceptable level of pain and suffering is and how it can best be delivered.

The ruling is also a potential boost for devices such as the LED Incapacitator, which does not rely on pain but other physiological effects (disorientation, loss of balance and nausea). Funding of more advanced non-lethal devices using assorted electromagnetic effects to paralyze or otherwise disable painlessly may also become more attractive.

Taser International is also likely to respond legally and technically. Having already developed several generations of Taser, the latest versions rely on muscular paralysis to incapacitate a target. The substantial pain is a side effect. A Taser that paralyzes without causing (perceived) pain would be an obvious avenue of research.

The new ruling is likely to have a significant effect on police on the streets. Many commentators will be watching evidence to support claims that it will make things better — or worse.


DISTRACTION – The New Alcohol

Distraction is becoming the new alcohol.

You know it’s big when the head honcho of the biggest transportation agency in the country is on board.  Is the scientific evidence supporting the anecdotal evidence?  Is “TWD” [Texting While Driving] as bad as “DUI?”

Ray LaHood is the United States Transportation Secretary.  On September 30,2009, he kicked off a Distracted Driving Summit in D.C. with the statement that “…distracted driving is a menace to society.”  He noted that every time you take your eyes off the road, even for a second or two, you put others in danger with your “irresponsible” behavior.

The D.O.T. is the latest group on the Distracted Driving bandwagon.  Those of us who ride motorcycles and bicycles on the roadway regularly see it all the time.  If I am riding downtown to court at 8:00 am, I would conservatively estimate that 1 out of 3 drivers are doing something other than driving – talking, texting, reading the paper, doing their eyes, or hair or nails, yelling at kids in the backseat. It’s almost like people think “Driving is so easy I can do it with my eyes closed…”

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“Distracted” driving clearly means more than “texting” but LaHood singled out the many uses of cell phones in his remarks.  “Texting” is a big one, of course, and LaHood pointed out that many of our country’s “best” texters are our youngest, and most inexperienced drivers.

Texting is only one aspect of electronic device usage we see in cars.  Folks use their Blackberrys and other “smart” phones to do dumb things while driving – like searching for songs on the Ipod, adding their last caller to their “Contacts” or trying to use the internet feature to find the address of their next destination on Google.

LaHood pointed out that in California, a train operator was “so busy texting a friend” that he failed to stop at a red signal, causing one of the worst train passenger train crashes in many years, killing 25 people and  injuring 135 more.  In New York, a tow truck operator ended up crashing through a fence, sideswiping a house and driving into a swimming pool as the result of “TWD” – texting while driving.

Texting, specifically, has come under fire in several communities in Ohio.  According to “handsfreeinfo.com” the cities of Cleveland, Toledo and North Royalton as well as Summit County have passed some form of texting laws. You can read about it here. In addition, state legislators have no less than SIX bills percolating right now which might impact texting or other distracted driving issues.

NEW YORK TIMES STORY – “Driven to Distraction”

The New York Times reported, on January 6, 2010, that car companies are now getting into the act.  Not satisfied with their current level of displays, many car companies are showing up shiny new digital gadgets on the dashboard that will allow drivers to surf the internet while driving.  Ain’t that just grand?  The article, entitled “Driven To Distraction,” notes the concerns of safety advocates about the impact of these “infotainment” systems on one’s ability to drive down the road without killing anyone.

In one system, you can open a screen while driving, say to the Bearcats basketball game, and scribble ‘Bearcats’ on the screen with your finger – um… did I say, “while driving?”  The system will bring up information about restaurants, parking, maps, and, I am certain, bars where you can grab a few drinks before driving home!

According to one safety researcher, the longer you look at something OTHER than the road in front of you, the risk of a crash goes up – exponentially.  “Not linearly, exponentially.”  The risk of a motorist causing a crash, of killing a cyclist or motorcycle operator, goes up significantly every second the operator’s attention is diverted from actually operating the machine.

Can you imagine a punch press operator with a TV set or Computer screen in front of him.  One second of distraction can cause the operator of such equipment to lose a hand or an arm.  If a hunter is distracted by trying to read a GPS while aiming the weapon and pulling the trigger, do you think his risk of hitting something other than an animal increases?

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Until government looks at MOTOR VEHICLES the same way it looks at guns and other DANGEROUS equipment we are going to have government creating, accepting and failing to punish some sort of “acceptable” level of distraction which leads to maiming or killing others.

2001 Study by AAA Foundation for Traffic Safety

Think back to 2001.  How many of you had cell phones?  Quite a few.  How many had PDA’s, “smart phones,” the ability to look up stuff on the internet while driving, the ability to text, the ability to update your Facebook status while driving, the ability to open your email while driving, the ability to open FAXES on your phone while driving?  Suffice it to say that the distraction landscape has changed significantly since 2001, eh?

Well, in 2001, the AAA Foundation for Traffic Safety was awarded a grant to study “distraction.”  At THAT time, NHTSA estimated that 25% of all police-investigated crashes involved some type of distraction.  In 2001, they estimated that only 1.5% of the distraction cases involved cell phone dialing.  There wasn’t even a category for “texting.”  One haunting sentence reads :”…as roads grow more congested and the demands on drivers increase, it seems likely that new in-vehicle technologies will add even more potential distracters…”

So now, in 2010, we have more cars, more congestion, more activities to drive to, less time to get it all done and more distractions.

2008 Study – UK Transport Research Laboratory

In 2008 the United Kingdom’s Transport Research Laboratory [TRL] conducted research on “texting whilst driving.”  The 64 page report is available for free on the TRL website. They tried to test the impact of texting on driving.  They concluded that texting makes it harder to drive… duh…

The TRL study went further, of course, and attempted to put some numbers to their conclusion.  In the 17-25 year old age group, which consisted of people who described themselves as “regular” texters, TRL found that texting while driving significantly impaired reaction times and made it difficult for the texting motorists to keep their vehicles within the lane lines.  At speed, the texters would travel a MILE while texting while the increased reaction time made for longer stopping distances, and made crashing far more likely.

Texters were also less able to maintain a constant distance behind the vehicle ahead of them and showed “increased variety in lateral lane position” – a fancy way of saying they couldn’t drive in a straight line.  Reading text messages resulted in a lesser impact on driving that composing text messages.

Texting was viewed as impairing driving skills more than alcohol and cannibis/pot!  One researcher felt that this result might be explained by considering that drunk/high motorists are TRYING to steer the vehicles while TRYING to see the road, but are impaired and lack muscle coordination or the ability to keep the vehicles on the roadway.  Texters, however, are not even looking at the road – their hands are off the wheel and they are locked in concentration on something which completely prevents them from focusing on driving.

All of this data, of course, was apparently ignored by the carmakers and tech-device manufacturers as they continue to develop more and more ways to seduce the motor vehicle operator into taking his/her eyes off the road…

BE SAFE!


Motorist Honks at Cop on Bike

Check out this blog posting from Orlando, and the accompanying video.  It chronicles what happens when an upset motorist honks at cyclists… and then discovers the lead rider is a bike cop….

Check it out here


CYCLISTS OUTRAGED AS POP SINGER ARRESTED FOR KILLING CYCLIST & FLEEING SCENE

THIS JUST IN FROM THE MIAMI NEW TIMES – POP SINGER CHARGED WITH DUI IN KILLING CYCLIST –

Carlos Bertonatti, a Sony recording artist, was arrested after a short police chase. Bertonatti is suspected of driving his Volkswagen into cyclist Christopher Lecanne, and killing him in Key Biscayne, Florida.

Police Officers claim Bertonatti was driving while intoxicated or impaired when he slammed into Lecanne and  then sped away with Lecanne’s bike lodged under his front fender.  He left the cyclist bleeding to death on the side of the road.

Here’s what police are saying:

Just before 8:10 a.m., Lecanne was riding his bicycle in the eastbound bike lane on Bear Cut Bridge, the last link on the Rickenbacker Causeway before Key Biscayne. Bertonatti was driving eastbound as well when he swerved into the bike lane and slammed into Lecanne.  After clobbering Lecanne, Bertonatti kept speeding east with Lecanne’s bike lodged under his car, according to a  spokeswoman for the Miami-Dade Police Department.

Finally, the singer stopped on the 600 block of Grapetree Drive, near the posh apartment where he’s listed as a resident. Police arrested him on the spot.

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via Miami-Dade Police Department
Bertonatti’s mug shot after his arrest on Sunday.

​In addition to the DUI, cyclists are upset about the response time of fire and rescue personnel.  There are claims that it took as long as 30 minutes for someone to arrive – claims which are disputed by police and fire departments. .UPDATE 2: A cyclist who claims to have witnessed the accident has written a first-hand account about what he saw on a bike forum. You can read the whole passage here.

From a few other sources:

– NBC – Drunk Singer Killed Cyclist & Fled Scene


Cyclist Struck in Key Biscayne, FL – Hit/Run

From the Miami Herald comes this report of a cyclist struck by a hit/run driver in Key Biscayne, Florida.  You can read about it here, or check out the story below…

Let’s Be Careful Out There.

Steve Magas

CYCLIST INJURED IN HIT & RUN – KEY BISCAYNE, FL

A bicyclist was struck and killed by a car in a hit-and-run Sunday morning on the Rickenbacker Causeway near the entrance to Key Biscayne — after which the motorist dragged the crumpled bike four miles down Crandon Boulevard.

As the cyclist fell to the pavement on Bear Cut Bridge, bleeding profusely, the car, a silver Volkswagen Jetta, barely paused, horrified witnesses said.

The car, its windshield smashed by the impact of the cyclist’s body, dragged the bicycle at high speed into the middle of the village of Key Biscayne, where the bike apparently became dislodged.

The motorist, whose name was unavailable, then drove several blocks more on Crandon and turned into Grapetree Drive near the southern end of the island, where Key Biscayne police later seized the car. It could not be determined whether the driver was detained.

Hours after the 8 a.m. incident, the crumpled remains of the blue Cannondale bike lay on the grass in front of the village Winn-Dixie, surrounded by yellow crime-scene tape and guarded by an officer. A few blocks away, the badly damaged Wolfsburg-edition Jetta still sat on Grapetree, also guarded by a patrol car.

A neighbor said the driver lives nearby.

A police spokesman could not be reached Sunday.

After the incident, angry cyclists who tried to assist the victim posted comments on websites, including The Miami Herald’s, complaining that rescue units took about 20 minutes to respond to numerous frantic 911 calls from the scene — even though a Miami-Dade fire station is located a couple of miles away on Crandon Boulevard.

Two cyclists, one a doctor and another a firefighter, tried in vain to help the victim, who lay in a pool of blood in the bicycle lane, one witness told The Herald.

The incident prompted the closure of Bear Cut Bridge’s eastbound lanes for most of the morning. The cyclist was riding towards Key Biscayne in a bike lane when he was struck, witnesses said.

The cyclist was taken to Jackson Memorial Hospital’s Ryder Trauma Center.


ROAD RAGE DOC GETS FIVE YEARS – TEXAS KILLER GETS ONLY TWO

COMPARING SENTENCES – THEY DON’T ALWAYS ADD UP

What a difference a state makes – or so it seems.

CALIFORNIA ROAD RAGE CASE – FIVE YEAR SENTENCE

In California, Dr. Christopher Thompson was convicted in a well reported “road rage” incident.  Testimony in the case included stories from several cyclists who were involved in road rage incidents with Dr. Thompson – the key event was not his only reported transgression!   It took a couple before the prosecution decided to go after him.

The paper trail of prior reports was helpful in getting the prosecutor, and the court, to believe that an Emergency Room physician could actually be so cold-hearted towards human life.  The testimony from those on the scene that Dr. Thompson said he “wanted to teach them a lesson” was chilling.  You can read Bob Mionske’s take on the case here.

As shown in this LA Times pic, Dr. Thompson was crying in court during the sentencing and was led out of the courtroom in handcuffs the other day after learning that the judge gave him a FIVE YEAR sentence for causing the road rage incident. You can read the whole LA Time story here.

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If only justice worked as well in every case.

TEXAS CASE – TWO CYCLISTS KILLED – TWO YEAR SENTENCE

On December 17, 2009, “justice” was handed down in the Kenneth Bain case out of Texas.  Mr. Bain had allegedly been driving home in his Lincoln Navigator from a bachelor party at 8:15 am, after ingesting both alcohol and pot, when he ran into, and killed, two cyclists.

The two cyclists, Meredith Hatch and Mike Alfaro, were members of a local cycling group and were training for an event when they were struck from behind and killed.  The photo of the huge Lincoln Navigator, from a local CBS television station’s website, shows the damage to the front of vehicle.

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Mr. Bain was sentenced on December 17.  His sentence was TWO years in prison with an additional 10 years of probation.

The families of the two cyclists, and local cycling advocates, were shocked and outraged.  You can read about it here.

How do you get such different results?  A guy in a road rage case who hurts, but does not kill, two cyclists gets five years.  A guy who ingested pot and alcohol at a party and then kills two cyclists by striking them from behind gets two years?

I wish I had an answer.  There are usually personal, legal or political factors that come into play in these cases, unfortunately.

In the the Texas case there were reports that the BAC for the driver was not over the limit and that there was some reluctance of the family of one victim to put the children on the witness stand.  There were additional reports speculating that Mr. Bain’s lawyer, a sitting Texas State Senator, or Mr. Bain’s family/money may have played a role.  Perhaps the prosecution was worried about some factual or legal issues and didn’t want to take a chance of this one getting away.  We’ll never know.

In the California case, you had clear evidence that the doc was actually INTENDING to do some harm.  There was testimony that the doc said he wanted to “teach them a lesson.”

In the Texas case, the driver was stupid, careless and maybe feeling the effects of a long night of partying, but there was no evidence of ill intent.  There was no evidence that he intended to hit the riders.  That would have led to murder charges.

That distinction – what the judge or jury believe is inside the MIND of the wrongdoer – is a typical dividing line for sentencing.  Intentional and malicious actions are usually punished more severely than careless or stupid actions.

Indeed, in Indiana a few years ago FIVE motorcyclists were killed [and many suffered life changing injuries] in 3 separate accidents on the same day, all occurring within an hour of so of each other in broad daylight.  In each case a relatively young motorist did something stupid and careless to cause the crash.  None of the motorists were drunk or high – just careless.  None of the motorcycle operators did anything wrong.  The prosecutor, in each case, refused to press criminal charges saying “We don’t prosecute negligence in Indiana.”

When alcohol or drugs are involved, though, many states crank up the sentencing, even for “careless” and non-intentional actions.  In the Texas case, while there was evidence of both, there may not have been enough evidence to show “impairment.”  Compare these two cases to the two Ohio cases discussed below…

TWO RECENT OHIO CASES – TWO VERY DIFFERENT RESULTS

In Ohio, we’ve had similar ups and downs.  In Pike County, Sarah Bender, the lady who ran over and killed Dr. Crowley during TOSRV in 2008, was convicted of a misdemeanor and sentenced to 60 days in jail.  However, in Cincinnati, Anthony Gerike is still serving his 16 year sentence for killing two popular local cyclists – Amy Gehring and Terry Walker.

These two cases also show the contrasts that develop in the legal system.  In Pike County, the defendant was a “nice” lady who was well known in her community and church.  The prosecution charged her with a felony leaving the scene, but the jury convicted on a lesser charge.

I have reviewed the 83 page police report in this case, and the dozens of photos taken by the Ohio State Highway Patrol.  Her story about what happened, of course, made no sense.  She told officers that she never saw Dr. Crowley.  That she struck Dr. Crowley and drove off was shocking, to say the least.  However, she wasn’t drunk or high or driving on a suspended license and did otherwise present as a “bad” person.

From the look of the front windshield of her car, though, her story about thinking that she might have hit “something” is more than a bit suspicious when you consider that Dr. Crowley was a big guy riding a pink Schwinn Paramount… Here’s a quote from the Columbus Dispatch about her testimony..

“…Bender testified that she thought something had hit her windshield in the rain and fog and that water was coming through, so she turned around and drove about 10 miles south back to her Scioto County home, where she parked the SUV in the garage and took another vehicle to drive to work…”  She then drove by the scene of the crash again and stopped when she saw the EMT’s & State Troopers.

Take a look at the front of that SUV and tell me if THAT makes any sense…

WINDSHIELD FULL

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Gerike, on the other hand, was drunk and high and driving on a suspended license when he killed Amy and Terry.  He was driving on the wrong side of the road.  He had taken out a mailbox before running through the group of riders.   He was portrayed, quite correctly, as a “bad guy” by prosecutors.  I helped track the Gerike case through the courts, and published regular updates.  Many cyclists attended the trial.  When he was convicted and the judge asked for input on sentencing, the local cycling community submitted dozens of letters to the court offering up opinions.  Many of us attended the sentencing hearing.

A MODEL FOR CYCLIST INVOLVEMENT

The Gerike case presents a good model for cycling clubs wishing to become involved in a criminal case.  We followed the case from Day 1, attended and reported on the hearings, communicated with the Prosecutor, spoke out in the media, and when the time was ripe for our involvement, we flooded the judge with our letters describing the impact of Gerike’s actions on the cycling community.  The letters clearly had an impact as the judge read from many letters at the sentencing hearing.

According to the Ohio Dept of Rehabilitation and Corrections website, Mr. Gerike remains incarcerated at Noble Correctional Institution.  His stated term expires on June 20, 2022.  While I believe the “ghost bikes” have been removed, the stone memorial to Amy and Terry remains, as far as I know, at the place where he killed them.

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JANUARY 2009 – TOLEDO KILLER SENTENCED TO 10 YEARS

This just in – literally.   Dateline January 15, 2010 at 2:27 pm.  In Toledo, Ohio, Jose Garcia was sentenced to TEN years for killing Flemming Williamson in East Toledo.  Mr. Williamson was riding his bicycle to a convenience store last January when he was struck by Mr. Garcia’s vehicle and left for dead. Mr. Garcia then fled the scene.  Police say, according to news reports, that Mr. Garcia was intoxicated at the time he killed Mr. Williamson.

Mr. Garcia pled no contest to aggravated vehicular homicide.  You can read about it here.

Another sad case… justice was done, but the damage and pain are lifelong….

Steve Magas

The Bike Lawyer


CYCLISTS URGE LONG SENTENCE FOR “ROAD RAGE” DOC

If you have read this blog you know I’ve been watching a California case in which an Emergency Room doctor was accused, and convicted, of a road rage incident in which he caused serious injuries to two cyclists.  The incident, described in the story below, was shocking to the cycling community.  After the conviction the judge, as is typical, accepted comments from the parties, and the community.  As you can see from the L.A. Times article below, a few hundred cyclists from all over the country responded.

Steve Magas
The Bike Lawyer
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http://www.latimes.com/news/local/la-me-cyclists8-2010jan08,0,1120092,print.story

CYCLING COMMUNITY URGES LENGTHY SENTENCE FOR PHYSICIAN CONVICTED IN BICYCLE CRASH

Cyclists from across the country — and as far away as Europe and China — are urging a Los Angeles County judge to order a lengthy prison stretch for a former Brentwood doctor convicted of deliberately injuring two cyclists in an alleged road rage assault.

In more than 270 e-mails and letters filed with the court, cycling enthusiasts condemned the actions of Christopher Thompson and argued that a tough sentence would send a strong message to hostile motorists everywhere.

Though some of the writers described themselves as friends of the victims, many said they had no connection to the case. Several of the letters came from physicians who wrote they were horrified that a medical professional sworn to “do no harm” would set out to injure bike riders.

“The Dr. Thompsons out there frighten me,” wrote Dr. Janna Summerall-Smith of Waresboro, Ga., “because I know that one may be out there on the road with me when I ride my bike.”

The outpouring underscores how Thompson’s case has galvanized a diverse community of cyclists around the world — from athletic road racers to environmentally conscious commuters to recreational riders.

The letters and e-mails were filed in court by prosecutors who have asked that Thompson, 60, be sentenced today to eight years in prison. The veteran emergency room physician was jailed in November immediately after jurors found him guilty of mayhem, assault with a deadly weapon — his car — and other charges.

Deluge of mail

The letters and e-mails are part of a deluge received by the court in the last two months, including more than 160 from friends and supporters of Thompson.

Many of the cyclists who sent messages about the case described how vulnerable they felt on two wheels when motorists get too close. Some recounted serious accidents caused by careless or sometimes vindictive drivers and complained that authorities rarely take such episodes seriously.

“Here in the U.K., the cycling community has a saying that, ‘If you want to harm or kill someone, a motor vehicle is the weapon of choice,’ ” wrote Tony Raven, of Cambridge, England.

Deputy Dist. Atty. Mary Hanlon Stone said the letters show that many cyclists feel like second-class citizens.

“It is time that motorists learn that they must share the road with people on bicycles and that the courts will view assaults on cyclists by motorists as seriously as other assaults with deadly weapons,” she wrote in court papers.

The July 4, 2008, crash highlighted simmering tensions between cyclists and motorists, particularly on Mandeville Canyon Road, the winding five-mile residential street where the crash took place.

Thompson testified that he and other local Mandeville Canyon residents were upset at how some cyclists ignored stop signs or rode alongside each other on the narrow street.

On the day of the crash, Thompson said he was driving to work when several cyclists swore at him and flipped him off as he called on them to ride single file. He said he stopped to take a photo to identify the riders and never intended to hurt anyone.

But a police officer told jurors that shortly after the crash Thompson said he slammed on his brakes in front of the riders to “teach them a lesson.”

One cyclist was flung face-first into the rear window of Thompson’s red Infiniti, breaking his front teeth and nose and cutting his face. The other cyclist slammed into the sidewalk and suffered a separated shoulder.

During the trial, prosecutors cited two prior incidents in which Thompson was accused of confronting cyclists along Mandeville Canyon Road and braking suddenly in front of them. None of those cyclists were hurt.

Thompson’s attorney, Peter Swarth, argued in court papers that his client deserved probation, not prison.

Any sentence, he wrote, should take into account Thompson’s years of dedication to healing the sick, including more than three decades serving the “underprivileged community of Montebello” at Beverly Hospital.

Health issues

Thompson has served two months in jail, is near financial ruin and his medical license will probably be revoked if he’s convicted, Swarth wrote. Thompson’s California medical license was suspended last month.

Swarth said Thompson also suffers from coronary artery disease and that incarceration could prove fatal. Since the crash, he has suffered from chronic post-traumatic stress disorder that includes disturbed dreams and sleep disorder among other symptoms, according to a report by a clinical psychologist hired by the defense.

Thompson, his lawyer wrote, has suffered public humiliation since news of the case broke and received “a deluge of threats and intimidation,” prompting the doctor and his wife to move out of state several months after the incident.

In seeking probation, the defense attorney cited other cases in which defendants avoided prison for more serious crimes.

Among them: Soon Ja Du, a Korean-born grocer, who was given probation in 1991 after she was convicted of manslaughter for the fatal shooting of Latasha Harlins, a 15-year-old African American.

Du’s sentence provoked storms of protest as well as an unsuccessful attempt to unseat the judge who sentenced her. The sentence was also blamed for inflaming already deep tensions between Korean shopkeepers and black residents of South Los Angeles in the months before the 1992 Los Angeles riots.

In his plea for leniency, Thompson’s lawyer attached numerous letters from friends and supporters of the doctor, including physicians and other health workers who spoke glowingly about Thompson’s reputation.

“He is a very wise man and caring physician,” wrote Dr. Robert Padgett, who described himself as an avid cyclist.

Michael Oana, an X-ray technologist at Ronald Reagan UCLA Medical Center, said he has known Thompson for many years.

“Dr. Thompson is not a criminal,” Oana wrote. “He acted without thinking. . . . He has paid dearly for his mistake.”

jack.leonard@latimes.com