Posted by Jonathan Maus (Publisher/Editor) on February 15th, 2011 at 11:33 am
"Given the circumstances, it seems like issuing a citation would probably not stand up in court. Any person could go in and say, 'It's dark, rainy, there's this little red light in the road'. I think any judge would toss that citation out'."
— Det. Sgt. Jim Shumway, Beaverton Police Department
The community is trying to understand what happened in Saturday's fatal traffic crash that resulted in the death of 47-year old Bret Lewis. In the meantime, Police investigators work on their investigation, advocates have swung into action, and family and friends grieve at the senseless loss of life.
As I mentioned in my initial report, the police statement about the crash seemed (to me at least) to go out of its way to absolve the motor vehicle operator (now identified as 48-year old James Nguyen of Beaverton) of any wrongdoing. Mr. Nguyen didn't intend to kill anyone Saturday night; but as a vehicle operator, he has an important legal (and moral) responsibility to use enough care and caution so as to not hit another person who is operating their vehicle legally (which it seems like Lewis was doing) on the same road.
To learn more about the crash and about concerns with how it was framed by police, I had a conversation yesterday with Beaverton Police Department Detective Sergeant Jim Shumway. Sgt. Shumway is the Public Information Officer who wrote the press statement about this crash.
The first source of confusion I wanted to clear up was where the collision occurred. The police made it clear from the outset that Lewis was not in the bike lane on Tualatin-Valley Highway, saying he was in the "curb lane." (The police also say that Lewis was stopped in the middle of the lane for some reason; a lane where traffic travels at upwards of 50 mph) As you can see from the aerial view above, the roadway configuration at this location isn't typical. There are two westbound lanes on TV Hwy, then a bike lane, then a right turn lane.
This morning, Sgt. Shumway told me that investigators believe the point of impact was in the outer lane (a.k.a. "curb lane), to the left of the bike lane if headed westbound (police refer to the "curb lane" as the standard vehicle lane — not a right turn lane — closest to the curb).
Many of you were also concerned that the police mentioned the weather conditions (heavy winds and rain) as being a "factor in the inability to see the bicyclist stopped in the traffic lane." The police also stated that, "It is not anticipated that the driver of the vehicle will be cited."
Oregon's basic speed rule (page 33 of the Oregon Driver's Manual) states that "you must drive at a speed that is reasonable and cautious for existing conditions... you need to think about your speed in relation to other traffic, pedestrians, bicycles, the surface and width of the road, hazards at intersections, weather, visibility, and any other conditions that could affect safety." I asked Sgt. Shumway whether we should expect Nguyen to be cited for a traffic violation.
"There's no update," Sgt. Shumway said, "I'm sure it stands just as it did."
Sgt. Shumway explained that Nguyen didn't do anything that would fulfill the criteria for careless driving and that, "Given the circumstances, it seems like issuing a citation would probably not stand up in court. Any person could go in and say, 'It's dark, rainy, there's this little red light in the road'. I think any judge would toss that citation out'."
Sgt. Shumway explained how, given the rain, wind, and darkness on Saturday night, Nguyen's visibility would have been severely constrained. "Those things can affect how you see at night. A small light on the back of a bike isn't like what you'd see on a vehicle... It seems to me it would be easy to not necessarily see that until you got close enough... Until it was too late to react."
[Note: Police have said Lewis had a "functioning" rear light. Oregon law (ORS 815.280) states that a bicycle must have a reflector or light, "visible from all distances up to 600 feet to the rear when directly in front of lawful lower beams of headlights on a motor vehicle." We have yet to learn whether or not Lewis' light met this requirement.]
When asked whether or not the driver might have been distracted, Sgt. Shumway said, "There wasn't any evidence of that and he was adamant that nothing like that was going on."
I tried to share with Sgt. Shumway, that whether he intended to or not, the inclusion of certain facts and words in the press statement (that led to numerous stories in the local media that copied it verbatim) seemed to assess blame for the crash on the victim and all but completely absolve the motor vehicle operator.
Sgt. Shumway disagreed, saying that his intention with the press release is to merely answer "head off" questions he expects the media to ask. "I don't think it does that [blames the victim]. What I'm responsible for is describing the circumstances that led to the crash... The media would ask. 'Why was he stopped in the road?'... It's not absolving anybody."
Sgt. Shumway continued,
"What happened here is that this is just an accident, it's an unfortunate accident. I think people watching on the news aren't concerned that someone got away with something they should be punished for... Not that it was the bicyclist fault, or the driver's fault; but that each had a set of circumstances that led to an unfortunate outcome."
Sgt. Shumway told me he fully supports bicycling and that he wants to use the media to get the message out that "It's not just cars on the road." But this case, he said, "Isn't one that furthers that cause."
"I think most of the [media] audience is going to look at the story and say, 'If i was driving a bike in the pitch dark in the rain, I would not stop on a road where cars are known to go 50 mph in the mid-lane of traffic. If I got a flat tire or my pants got caught in the chain, I would immediately move to the side of the road."
There are vehicle equipment laws and laws that govern how we use our roads, but Sgt. Shumway urged me to "look at the totality of the cirucumstances" in this case. Even if Lewis had a bright rear light, Sgt. Shumway said, "It probably wasn't powerful enough or large enough to overcome the circumstances surrounding this situation."
And he should know. Sgt. Shumway shared that he himself has driving on this road many times at night. "I could totally see how you'd miss a small red light."