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Expert witness backfires on DA in bike lane case

Posted by Jonathan Maus (Publisher/Editor) on November 7th, 2006 at 1:17 pm

[City of Portland's
Chief of Bicycles,
Roger Geller]

One of the more interesting and dramatic cases in yesterday's "Bike Day at Court" was the case involving Jeff Smith.

Smith is a PDOT employee who, ironically, has worked in the city's bike program for many years.

Smith was issued a citation for failure to use a bike lane while driving his bicycle westbound on SW Main Street between the Hawthorne Bridge and 1st Avenue.

Interestingly, instead of just the cop defending his ticket (which is the usual practice), according to one observer there were "four or five" District Attorneys present for this case,

"the DAs were constantly huddling together, talking amongst themselves, and advising other officers in the room."

As part of their case, the prosecution called PDOT's bicycle program coordinator Roger Geller to testify as an expert witness. The DA hoped to preempt an argument they thought Ginsberg would raise; that hearings had never been held to determine that this specific bike lane was safe and therefore it did not have to be used.

This issue of hearings being necessary to determine validity of a bike lane comes up in a few obscure lines of the following Oregon statute:

    814.420. Failure to use bicycle lane or path; exceptions.
    (2)A person is not required to comply with this section unless the state or local authority with jurisdiction over the roadway finds, after public hearing, that the bicycle lane or bicycle path is suitable for safe bicycle use at reasonable rates of speed.

The DA hoped to convince the judge that because the City of Portland Bicycle Master Plan (last updated in 1996) did indeed go through a hearing process and that meant the bike lane in question was adequate and safe for bicycles and therefore must be used.

Geller testified (and the judge agreed) that the public participation in drafting the 1996 Bicycle Master Plan was adequate to qualify as a hearing that covers the entire bike network without requiring hearings for each segment.

Once the DA established Geller as an expert on this topic they rested their case.

Ginsberg then cross-examined Geller.

Ginsberg referenced ORS 814.430(2)(b) which states:

    (2) A person is not in violation of the offense (of leaving the bike lane) under this section if the person is not operating a bicycle as close as practicable to the right curb or edge of the roadway under any of the following circumstances:
    (b) When preparing to execute a left turn.

Ginsberg then asked Geller if it was safe and reasonable for Smith to leave the bike lane in this situation. According to Geller,

"I testified that it was completely reasonable and safe for Jeff to leave the bike lane in this situation. I told the Judge there are many variables that come into play when deciding precisely how far before a turn it's appropriate to leave the bike lane.

I gave him the analogy that it's common for a motor vehicle to merge into the left lane even a mile before they expect to execute their turn. Of course I don't think a cyclist should do the same, but I was just trying to make a point."

Then, grasping for straws, the DA tried to convince the judge that Geller's testimony should be thrown out because he and Smith are long-time friends.

Ginsberg quickly pointed out to the Judge that the prosecution couldn't have it both ways; either Geller was a credible witness or he wasn't.

Judge Lowe thought he was and ruled in favor of the cyclist.

In his final decision, Judge Lowe found that in this case it was safe and reasonable for Smith to leave the bike lane. According to observer Elly Blue, Lowe then quickly clarified his decision,

"The judge made it clear that his "not guilty" verdict was only because of the particular circumstances of this case. He was concerned that a general ruling might dismantle the whole institution of bike lanes."

Another PDOT employee, Dat Nguyen was on trial for the same violation and Judge Lowe dismissed his case without a trial.

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Comments
  • adam November 7, 2006 at 1:28 pm

    I cannot imagine the information flow and communication magic that happened during the huddles.

    can anyone tell me how much money the city has wasted hassling cyclists so far in 2006?

    seems to me that the city owes the bike community at least a millino dollars. 5 DAs? how much is that? assholes.

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  • mikehugo November 7, 2006 at 1:33 pm

    Question? All i've seen in print are the presumed deficencies with the "fixie". What are the advantages? Why do people choose this type? I love bike paths, not lanes, too scary for me.

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  • Qwendolyn November 7, 2006 at 1:49 pm

    Way to think on your feet Ginsburg!

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  • mikehugo November 7, 2006 at 2:07 pm

    Adam, information flow, communication "magic". Are these things scary to you? A millino? Is that a number? Well what ever it is who gets to divide it? Are you bringing answers and ideas or....

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  • mikehugo November 7, 2006 at 2:18 pm

    I'm pro bike! What scares me is the seemingly prevelant attitude that it's my right of way and watch me take it. I work in a mixed environment of Fork Lifts and Pedestrians; not a good mix, sound familiar? All our training says peds have the right of way and they do! When something goes wrong who pays? Ouch! I drive a lift and i cover many hundred yards a day on my feet and I always defer to the 8,ooo. pound Gorilla. Why? It's a matter of commen sense! Advocate, speak up, push your legislature for real bike lanes (segregated from auto traffic) been to Europre lately? But please don't let your ego put you in a no-win situation... hm?

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  • adam November 7, 2006 at 2:48 pm

    mike, thanks for the response, really, thank you. let me be more clear(I was detained by the cops recently and I am still very angry about it).

    1. I love communication, magic, information AND flow. however, when I see the city lawyers conferring with the cops, I doubt any of this is happening. the comment was meant with sarcasm and I should have been more clear about that.

    2. millino is not a number, it is a typo. I meant, 1,000,000.

    3. I will restate the question that was the PURPOSE of my post.....Q - "can MIKEHUGO tell me how much money the city has wasted hassling cyclists so far in 2006?".

    well, can he?

    we can communicate on how to share the spoils when we have earned them. I don't need money, I am rich.

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  • Vigilante November 7, 2006 at 2:59 pm

    Great post. I can almost hear the "Law and Order" music cues in the background!

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  • tonyt November 7, 2006 at 3:02 pm

    mikehugo,

    Adam was making a humorous observation about the communication “magic”. Is that scary to you?

    I'm often amused by how some people feel compelled to preface their statements with, "I'm pro-bike," or "I ride" etc. It seems sort of the like the bike equivelent of "some of my best friends are black."

    Regarding the "it’s my right of way and watch me take it," attitude; In my experince, that is THE safest way to ride in traffic. The worst thing you can do is seem timid and unsure. You have to be assertive (yet defensive), and behave like you belong . . . because you do.

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  • adam November 7, 2006 at 3:11 pm

    tonyt, thank you for being clear on my behalf. tonyt can come ride with me, anytime.

    we will take the whole road if we feel like it makes us safer.

    if your army wants to ticket us, good luck, we will see you in court.

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  • Gregg November 7, 2006 at 3:57 pm

    Some of you here have serious issues. A DA speaking to cops? No way! You mean the people whose job it is to enforce laws of the state talking with the people who are supposed to prosecute violations of the same??? What nonsense!

    When was the last time you saw positive change happen after calling somebody (with much higher education, morality, and public approval BTW) an asshole, moron or other nasty things that were edited before being posted here. Think your method works? The please let me know how far you've gotten with 1) Give us the audio tape! or 2) Boycott Starbucks!

    Please just be quiet, donate the money you save from being carless and/or brakeless to the BTA and maybe we'll actually see progress . You're not helping anything or anybody with senseless tirades.

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  • adam November 7, 2006 at 4:21 pm

    starbucks is donating 6 figures to a charity event that I am producing. I am not in the mood to protest them right now.

    I met with cheif sizer last tuesday at 3:55pm. She does not think that her department can be any better than it is. I strongly disagree.

    I did not call her any names, I apologize for the language that I used, but, gregg, I need to GET YOUR ATTENTION. now that I have it, let's share a cup of tea and exchange ideas.

    this blog knows how to find me. however, I know the first ammendment and I don't feel like being quiet right now.

    peace,
    adam

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  • jami November 7, 2006 at 5:22 pm

    woohoo! thanks to everyone (except the cop and the huddled da's) involved in this case! bike lanes are not meant to be traps.

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  • Michael November 7, 2006 at 5:23 pm

    This issue is so insane it makes me... upset. A lot upset. If there were some evidence that the police actually took meaningful action against the tremendous number of motorists, driving very large, heavy, dangerous vehicles way too fast and running through way too many red lights, then I might cut them some slack. This harassment of cyclists is like citing pea shooters during a war just to make some insane point. I was almost run over while completely legally walking across SE 39th when an aggressive illegal left turner came right at me, and narrowly missed me. This happened with a Portland Police car stopped at a light right there. He could not have missed anything, and did absolutely nothing.

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  • SKIDmark November 7, 2006 at 6:06 pm

    If they put this much effort into arresting and prosecuting tweakers our streets would be a lot cleaner and safer. And the real "brakeless" bikes (BMX bikes with non-working or missing caliper brakes) would be gone too. Which brings up a point: how many people downtown on bikes that really don't have brakes are being ticketed for it?

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  • Donna November 7, 2006 at 6:25 pm

    I don't want to see a ruling that might dismantle the whole institution of bike lanes - I just hope to see that particular bike lane dismantled.

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  • no one in particular November 8, 2006 at 2:54 am

    Yeah, the whole thing seems like a few cops on some bizarre rampage. One guy got ticketed for turning right at an intersection, but he went into a lane other than the closest lane? How many times a day do cars do that? Whenever they feel like it! Who cares! You check the road, if it's clear, you make the far-lane turn! It's no big fucking deal!

    These two or three cops have some grudge and are enforcing stupid laws to take it out on us. Dumb, dumb, dumb.

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  • adam November 8, 2006 at 1:30 pm

    mikehugo, where did you go? I asked you a question.

    3. I will restate the question that was the PURPOSE of my post…..Q - “can MIKEHUGO tell me how much money the city has wasted hassling cyclists so far in 2006?”.

    well, can he?

    either answer it or admit that you don't know. thanks.

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  • [...] In the case against Jeff Smith, the opinion of the room was divided between people who have bicycled westbound on SW Main and those who have not. Proving the case was a matter of turning a bicyclists’ practical necessity into courtroom analytical logic, not an easy task without Roger Geller’s sensible explanation. [...]

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  • adam November 9, 2006 at 9:30 am

    mikehugo - I am asking you a question.

    you are sooo smart. I am asking you a question. you want a reminder:
    mikehugo, where did you go? I asked you a question.

    3. I will restate the question that was the PURPOSE of my post…..Q - “can MIKEHUGO tell me how much money the city has wasted hassling cyclists so far in 2006?”.

    well, can he?

    either answer it or admit that you don’t know. thanks.

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  • tonyt November 9, 2006 at 10:32 am

    Adam,

    I don't think the exact figure is the important issue. We all know that court time (officers, DAs, judges) is expensive.

    What we have here is a combination of a solution in search of a problem and officers wanting to show us who's boss. It's just a pissing contest.

    Speaking of making people produce figures. I want to see the figures of non-hand brake fixies being a problem. Show me damage and injuries and I will be in favor of changing the law. As it stands though, non-hand brake fixies meet the requirements of the law. Let's move on to real problems.

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  • adam November 9, 2006 at 11:52 am

    tonyt, excellent points.

    I don't know the total social costs of the problem of people who choose to brake with their muscular legs. however, I am prepared to make an educated guess:

    $0000000000000000000000000000000000000000.00

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  • i_r_beej November 9, 2006 at 5:00 pm

    Bike lanes are stupid. Auto traffic kick all the debris INTO the bike lane. Then we have to ride through the glass, metal, weird junk, and stuff?

    Furthermore if there is a bike lane, motorists EXPECT bicyclists to STAY IN THEM. Then the bicylist all but disappears to the motorist.

    There are tons of examples (all in Europe, mostly in Holland) of mixed-use roadways being the safest. There are no "sidewalks" no "bike lanes". Everybody shares the same thoroughfare and there are dramatically fewer accidents-- mostly because motorists don't have the perception that there is a force-field segregating other users.

    I hate bike lanes-- motorists too often see them as turning lanes or as parking.

    I'll say it again-- motorists DO NOT see into bike lanes and thus bicyclists are, ironically, more vulnerable. I can't count the times that i've had cars turn in front of me, pull over into me (using the bike lane as a turning lane) and even pull over and park in front of me.

    I will not use bike lanes-- i prefer to stake my claim to a reasonable portion of the road that i am entitled to. I am TRAFFIC TOO. I get a part of the road. I will be visible to motorists and move with the traffic and BE PREDICTABLE. I will NOT be segregated into bike lanes.

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  • Dabby November 9, 2006 at 9:45 pm

    Gregg et All.,
    One last time, for the masses.

    A properly applied track gear to a fixed gear hub
    IS A BRAKE!
    It is ignorance to, after all this time, and explanation from professionals on this exact topic, not understand that this is a proper and sufficent brake for riding your bicycle.
    It is an injustice and a crime to your fellow cyclists to keep making inflammoatory statements like this: "Please just be quiet, donate the money you save from being carless and/or brakeless to the BTA and maybe we’ll actually see progress"
    Once everyone, including you Gregg, and the Police, and the courts, and the state, finally realizes what the simple truth is on the fixed gear issue, this will all be a mute point.
    But, so far, due to either misunderstanding, or once again ignorance, this point has been lost on everybody.
    There is not a bicycle made that complies with the Oregon State ordinace. I dare you to come up with one.
    The only people who ride around with no brakes are little children, because many childrens bikes and tricycles are made with braking technigues emmulating a fixed drive train.
    And urban assult and park riding BMX'ers, who ride skillfully without brakes, for within the confines of what they do, they are not always needed, nor safe.
    Oh and tweakers and tweak MX'ers, who roll around town on delapidated, and sometimes stolen bikes, with no brakes.
    So, once again,
    A properly built fixed gear bicycle HAS A LEGAL BRAKE.
    As legal as is possible with this poorly written ordinance.

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  • Dabby November 10, 2006 at 11:09 pm

    In the above comment, "The only people who ride around with no brakes are little children, because many childrens bikes and tricycles are made with braking technigues emmulating a fixed drive train.", I meant to point out that a child's bike of this manner does not have brakes, because it is "Not" a properly applied technology..such as a fixed gear hub, cog, and chain.

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  • Gregg November 11, 2006 at 12:44 pm

    I personally think that a fixed gear is not a brake but a device with a braking effect which apparently works well. However, from my understanding of our legal system, those kinds of gray areas are not really acceptable and should have clarification which brings me to my real point: The law should be rewritten so a police officer with bias can't get away with writing tickets (for long). I am very supportive of that change but would never align myself with people who like to address our public servants as "buttmunch". It's just not productive.

    Bringing up the children and BMXers to bolster this argument is kind of odd. Children need special protection because they're children and BMX riders ride for sport in areas designated for that purpose. They are not people who typically ride in mixed traffic (where they have to Share The Road).

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  • Val A Lindsay II November 20, 2006 at 9:23 am

    A question regarding this....

    "814.420. Failure to use bicycle lane or path; exceptions.
    (2)A person is not required to comply with this section unless the state or local authority with jurisdiction over the roadway finds, after public hearing, that the bicycle lane or bicycle path is suitable for safe bicycle use at reasonable rates of speed."

    What kind of signage, if any, is used to let the rider know this lane is one of the safe lanes? It seems ludicrous for anyone in any vehicle to be expected to look up a road's use before using the throughway.

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  • [...] Estremecedora crónica judicial del juicio a un ciclista aquí: http://bikeportland.org/2006/11/07/expert-witness-backfires-on-da-in-bike-lane-c ase/ [...]

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