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Should Hwy 101 collision have triggered ‘vulnerable roadway users’ law?

Posted by on July 17th, 2012 at 4:12 pm

“This clearly should have been a VRU [vulnerable roadway user] case.”
— Ray Thomas, lawyer and bike law expert

A recent collision on Highway 101 has raised questions about the application of Oregon’s driving laws.

On July 8th, a 35-year old Providence Hospital surgeon from Hood River, Christeen Osborn, was riding her bike northbound on Highway 101 a few miles south of Cannon Beach when she was hit from behind by a mini-van being driven by 78-year Wanda Cortese from Kennewick, Washington. Based on an investigation and witnesses interviewed by the Oregon State Police, Cortese was found at fault for the collision and was given a citation for “Failure to drive within a lane,” a relatively minor traffic violation that comes with a $260 fine.

The collision made me wonder whether or not Oregon’s landmark “Vulnerable roadway user” (VRU) law should have been triggered. That law created an enhanced penalty for any vehicle operator convicted of careless driving whose actions, “contribute to serious physical injury or death to a ‘vulnerable user of a public way’”.

“I have not seen anything or been told by our on-scene supervisor that the driver “passed unsafely” related to this incident.”
— Lt. Gregg Hastings, Oregon State Police

In order for the VRU law to be triggered, the police would have to find that Cortese operated her vehicle in a careless manner. In Oregon statute, someone is guilty of “careless” behavior if they operate their vehicle, “in a manner that endangers or would be likely to endanger any person or property.”

Osborn was critically injured in the collision and she remains hospitalized with very serious injuries nine days later. Based on the OSP’s citation and on accounts of what happened, Cortese clearly did not maintain her lane and allowed her vehicle to veer into the shoulder prior to the collision. One witness who allegedly saw whole thing, Christina Carrillo-Cowan, said, “The van had absolutely no reason for swerving.”

So, given all the above information, why wasn’t Cortese cited for careless driving (which would have automatically triggered the VRU provision and enhanced penalties that go along with it)? I asked OSP Lieutenant and Public Information Officer Gregg Hastings that same question.

Here’s how he responded (via email):

“The Careless Driving statute is not a catch-all for any situation involving a bicycle-involved traffic crash. The trooper’s decision to cite is based upon whether there is enough evidence to prove that the driver was operating the vehicle in a manner that endangers or would be likely to endanger any person or property. The fact that someone was injured is not necessarily enough to prove the vehicle was being operated carelessly or recklessly. Unless there is a change in the trooper’s decision based upon available information and evidence related to the crash investigation, the original cited charge will remain in effect and move forward in court.”

To that I replied:

“I realize it comes down to the evidence and the trooper’s discretion to some degree. I think there are people who see the fact that the van left its lane and passed unsafely as reason enough to meet the “endanger” and “careless” standard.”

And Lt. Hastings responded (in part):

“I have not seen anything or been told by our on-scene supervisor that the driver “passed unsafely” related to this incident. In this case, the only fact that the driver drifted onto the shoulder may not of itself be careless without some other factor such as fatigue, distraction, talking on cell phone or texting, etc…”

So it appears from Lt. Hasting’s reading of the careless driving statute (ORS 811.135) that there are additional factors that must be involved for someone to be held liable for careless driving. However, there’s nothing in the text of the statute that mentions fatigue, distracted driving, and so on.

Something’s amiss here. In the OSP’s interpretation, driving a motor vehicle on a highway at a relatively high rate of speed (assuming Cortese was going 40 mph or so) and allowing that vehicle to leave its designated lane and collide with another road user, causing serious injuries, is not technically “careless”.

Noted bike lawyer Ray Thomas, who helped pass the VRU law with the Bicycle Transportation Alliance back in 2007, feels that the OSP got it wrong this time. “This clearly should have been a VRU case,” he told me via email last week. As we know all too well, traffic laws are only effective if police officers know they exist and choose to use them. Or, as Thomas put it, “I wish the law enforcement community was more familiar with the VRU law.”

In this case, Lt. Hastings says the OSP is simply trying to “make the right decision and not rush to judgment.” Hastings added that, “If we make the wrong enforcement decision then we may not be able to charge someone with a more serious offense later, or it could be overturned in court during trial.” However, Cortese has already received a traffic ticket. If she goes to court (likely in the next month or so), pleads guilty and pays a fine, she will have effectively prevented the OSP from going after more serious offenses later due to double jeopardy laws.

The issue here seems to be one of perspective.

To traffic safety advocates and people that spend most of their time as vulnerable roadway users, any carelessness or even minor transgression while operating a car or truck can mean the difference between life and death and they naturally want to see more consequences when tragedy strikes. People who don’t spend much time as a vulnerable roadway user, and who are more likely to sympathize with an auto-centric outlook on these situations, will tend toward a higher tolerance for unsafe behavior behind the wheel. Or, to put it another way, they will be less likely to consider potentially life-threatening behaviors as anything other than minor infractions.

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  • Evan July 17, 2012 at 4:23 pm

    Saying that this incident didn’t involve careless driving seems to assume that any person who drives for a sufficient amount of time will inevitable cause a major injury to another road user, and there’s nothing wrong with that.

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    • 9watts July 17, 2012 at 6:04 pm

      “The trooper’s decision to cite is based upon whether there is enough evidence to prove that the driver was operating the vehicle in a manner that endangers or would be likely to endanger any person or property.”

      This doesn’t suggest a very high threshold. I don’t think there is any question that Wanda Cortese operated her vehicle in a manner that endangered a person.
      As for the need for enough evidence, why aren’t Christeen’s injuries and witness statements enough evidence? Whether she let go of the steering wheel or swatted a fly or did or experienced any of a thousand other plausible things, what does it matter? The point is she seems to have failed to perform the duties expected of a driver of a motor vehicle, with horrific consequences. If this is not considered careless (at a minimum), what is?

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      • Craig Harlow July 18, 2012 at 9:56 am

        I think that’s the point. It’s not that she left the lane and crossed over into the shoulder; it seems that it’s the question of what precipitated that movement.

        I don’t think the law provides for the assumption that, unless proven otherwise, carelessness causes an action such as this. Usually, innocence is presumed until guilt is proven, and in this case evidence of guilt (related to what precipitated crossing onto the shoulder) would be required for the responding officer to cite for carelessness.

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  • ed July 17, 2012 at 4:35 pm

    So it’s not enough that the car drives off the roadway lane and hits a cyclist. And it not even enough that they do it carelessly and without reason. We must know the exact reason. (cell phone use, makeup application, dog petting etc) Only if we know this can the driver be cited! Why did we bother to waste time passing a law that is then virtually unenforceable? It still holds true that the best way to literally get away with murder is to hit a cyclist or ped with your car and simply say you didn’t see them. Don’t do it if they are in another car however; hitting another car automatically sets up very specific presumptive guilt that only applies if the victim is in another vehicle. Make sure they are on foot or on a bike. (better chance of really killing them that way too!)

    If law enforcement people ever sense any lack of “esteem” that we might hold for them as non-car users, they need only to look at events like this to learn why. This sort of double standard is beneath contempt.

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    • was carless July 17, 2012 at 9:12 pm

      Its enforceable, they just choose not to.

      Occam’s Razor.

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      • Paul July 18, 2012 at 7:02 am

        Or they didn’t know/forgot the VRU law existed. Has it been applied before?

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  • Ross Williams July 17, 2012 at 4:37 pm

    The problem is that almost anyone who has driven for very long has been careless at some point. The question is whether even these minor careless actions are or ought to be punishable under the law when they result in injury. It might make everyone driving a little more careful if they were.

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    • El Biciclero July 17, 2012 at 5:03 pm

      “…almost anyone who has driven for very long has been careless at some point.”

      I think this highlights a flaw in our attitude toward driving. Would we say the same about legal gun owners? Have they all been careless at some point and just been lucky not to shoot anyone? Or is the destructive power of guns more respected and feared than the destructive power of motor vehicles? Have private airplane pilots all been careless at some point and just been lucky not to crash? Have all SCUBA divers been careless and just been lucky not to drown? Have all demolition experts been careless at some point and just “fortunately” haven’t blown anyone up? Are all skydivers careless once in a while and just hope their chute opens OK?

      I’m using pretty extreme examples here, but I want to make the point that driving is not treated as a privilege that requires the utmost respect given to the power wielded and the utmost attention paid to the performance thereof. We too often just hop in and go, with little thought to what we are really doing: commanding the destructive force equivalent to a bomb that only takes one small flick of the wrist or ankle to detonate.

      We don’t think about it because even if we detonate the bomb, we likely won’t suffer for it.

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      • are July 17, 2012 at 7:06 pm

        Actually, yes. Every year there are any number of injuries or deaths caused by guns that do not result in prosecution. Hunters bagging other hunters, a handgun going off in someone’s purse, etc. If you put several million people on the roads moving these big machines around, statistically someone will get hurt.

        A car should not drift onto the shoulder, and that is what the improper lane usage charge is for. It does not require that you prove anything about the driver’s state of mind. Once you move up the chart to criminal charges, you do get into questions of intent, awareness, etc.

        Interestingly, the vulnerable user law ostensibly avoids this problem by using the word “careless,” which is defined at ORS 811.135 as driving “in a manner that endangers or would be likely to endanger any person or property.” Drifting onto the shoulder does fairly clearly fall into that category, regardless of the driver’s state of mind.

        When the lieutenant resorts to examples of fatigue, distraction, etc., he is trying to illustrate the kinds of things he would have to prove to make the “carelessness” charge stick. But here we are not talking about persuading a jury, we are talking about a traffic judge, who could order a fine of anywhere from zero to $12.5k, suspend or revoke driving privileges (for an out of state resident? the statute refers only to ODoT), and/or require her to take a traffic safety course and/or put in some community service hours.

        As I have said elsewhere, I do not think anything is to be gained by sending people to jail, but there is something to be said for slapping people awake a little, as the vulnerable user law is intended to do.

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      • JAT in Seattle July 18, 2012 at 8:52 am

        Absolutely right (and there’s no way to quantify the number/percentage of gun owners/parachutists/scuba divers etc who have been careless and gotten away with it – clearly a non-zero number) One difference is that for the other life-threatening activities in which some engage the people endangered are themselves or people likely to be known to them (more family members are accidentally shot than random fellow hunters, I’d wager), but the crucial difference is that society has consciously or unconsciously decided that driving is so essential to society’s continuing operation that we collectively (except here) put the potential for harm out of our minds. A lot of people just can’t hand the cognitive dissonance.

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  • ed July 17, 2012 at 4:43 pm

    I have to add here: suppose this had car swerved off the road and hit a car with a person standing next to it that was fixing a flat. Is there any doubt AT ALL that offending motorist would be charged with more than “failure to drive within a lane”? I am nauseated and livid. Perhaps the OSP Officer can be charged with “failure to perform duty.”

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    • DoubleB July 17, 2012 at 10:53 pm

      Yeah, there’s a pretty big doubt. A 16 year old killed 2 people changing a flat in Colorado a few days ago driving a semi. He left the scene. Leaving the scene was a felony, but the actual driving infraction (careless driving causing death) was a misdemeanor–2 misdemeanors for the 2 deaths.

      Do your homework before you assume something that isn’t the case.

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      • ed July 18, 2012 at 11:54 am

        Thanks for proving my point with all the “research” Mr B.. So the driver was charged with misdemeanors then? My point exactly. And I guess your patronizing scold is to assert that in order to express an opinion or pose a rhetorical question one must first do exhaustive research to determine if the statement is legalistically true? May I say this sort of needless putdown and gratuitous incivility marks you? Incredibly, it IS possible to state your view with putting down another, a great skill in life by the way.

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        • DoubleB July 18, 2012 at 9:11 pm

          Ed, you flat out assumed something that isn’t true with a tone of outrage against drivers hit by cars. Yes those drivers hit by cars on the side of the road get all the breaks. Heck, the VRU law doesn’t even cover drivers changing a flat. It’s one thing to be upset about the law and this woman’s extremely lax punishment in violation of it. It’s another to use it to promote some type of bias that doesn’t exist. Frankly that’s nauseating.

          So if this women had been charged with a misdemeanor you wouldn’t be “nauseated and livid’? I didn’t realize that was such a low bar.

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      • Eric Moody July 18, 2012 at 1:07 pm

        Sooo…. does that make it right?? That kid should also be charged with more than a misdemeanor! Does CO have a VRU law like OR. Maybe do some more research of your own!

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  • Chris I July 17, 2012 at 4:47 pm

    So I can drift onto the shoulder legally, at speed, provided that I’m not distracted?

    Check.

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    • A.K. July 17, 2012 at 5:01 pm

      No no no, that is probably SUPER-DUPER ILLEGAL, likely to be enforced by a big fine, jail time, and community service.

      Just make sure you clip a cyclist while in the shoulder, then it’s no problemo!

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  • El Biciclero July 17, 2012 at 4:48 pm

    “the…fact that the driver drifted onto the shoulder may not of itself be careless without some other factor such as fatigue, distraction, talking on cell phone or texting, etc…”

    Is driving off the roadway considered to fall under the general category of failure to exercise due care? If so, then it ought to be considered careless.

    I believe I saw “distraction” listed among the prerequisites for “carelessness”. Can we not assume that if a driver “drifts” out of their lane and hits someone who is in front of them, they were “distracted”?

    This sounds like the same old standard wherein “if you’re not drunk, it doesn’t count”.

    We’ll never strike the necessary amount of fear into the hearts of drivers if the only real consequences of bad driving happen to other people. When somebody who critically injures a bicyclist (or pedestrian) only gets a couple-hundred-dollar fine for a traffic infraction, aren’t we just generating more “death wish” comments? I’d love to see the day when careless drivers are seen as “begging to have their licenses revoked” or “just asking for jail time” and looked down upon by the responsible public. I don’t think all the bike riding in the world would help me live that long, though.

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    • 9watts July 17, 2012 at 5:45 pm

      “the…fact that the driver drifted onto the shoulder may not of itself be careless without some other factor such as fatigue, distraction, talking on cell phone or texting, etc…”

      This seems like a bullshit interpretation of the law to me. As I’ve been wondering aloud for a while in these comments–and Hastings’ interpretation of the law seems to confirm–why should the citation rely on testimony of the driver, on self-identifying as distracted or fatigued. The criteria listed by Officer Hastings aren’t factors any of us outside the car can (necessarily) judge, so doesn’t it come down to the degree of strategic behavior on Wanda Cortese’s part in the Q&A with the officer after the fact?

      Candace Palmer, for instance, admitted to “attending to her dog” in the back seat, and promptly ran over Reese Wilson. She *was* cited for Careless Driving causing serious injury to a vulnerable road user, but this didn’t stop the grand jury from acquitting her.

      It is starting (ha!) to seem even with the VRU like there really is no way to hold people who–cited as careless or not–drive over or into other people who had been biking accountable in a manner that seems commensurate with the horrific injuries that result from this inattention. This is neither just nor reasonable.

      According to Portland Police Bureau Traffic Division Captain Todd Wyatt, Palmer told investigators that she looked to the rear seat of her car to “attend to her dog” prior to the collision. That distraction caused her to drive into the bike lane and off the right shoulder. She struck Wilson, then a parked car, and then careened through a fence before coming to a stop on the side of a house.
      http://tinyurl.com/7chddw3

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    • wsbob July 17, 2012 at 6:02 pm

      “…Can we not assume that if a driver “drifts” out of their lane and hits someone who is in front of them, they were “distracted”? …” El Biciclero

      You can assume anything you want. It’s a free country. People wanting truth and justice, rather than simply assuming upon speculation or prejudice that someone has done something, should seek the facts.

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      • are July 17, 2012 at 7:10 pm

        actually, though, the vulnerable user law
        http://www.leg.state.or.us/07reg/measures/hb3300.dir/hb3314.en.html
        does not require that you prove anything about the driver’s state of mind. it is simply a traffic violation, not a criminal charge, and the only proof required is that she in fact operated the vehicle in a manner that (cross reference to 811.135) “endangers or would be likely to endanger any person or property.” drifting onto the shoulder is somewhat likely to endanger, and hitting someone on the shoulder obviously does in fact endanger, QED.

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        • wsbob July 17, 2012 at 7:45 pm

          “…the only proof required is that she in fact operated the vehicle…” are

          Which, in the moments between when the vehicle left the main lane and moved to the shoulder, then striking the person on the bike, is either not known or hasn’t been reported at this point.

          The driver was behind the wheel; this alone doesn’t mean the driver abandoned care to have the vehicle move there. The driver may very well have been exercising great care in the operation of the vehicle, when something unexpected, unknown at this point…happened. If something like that happened, it should factor into considering whether the driver is due a citation according to the intent and language of the vulnerable road user law.

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          • are July 17, 2012 at 8:37 pm

            please do not be distracted (as apparently the state patrol info officer was) by the word “careless” in the statute. what the statute requires is that she operated the vehicle in a manner that endangered or was likely to endanger. in the moments between when the vehicle was in the travel lane and when it was on the shoulder striking someone, either she was or she was not operating the vehicle, period. as a practical matter, though the word “careless” is used, it is defined in such a way as to talk only about what actually happens, not state of mind.

            maybe if the road shifted, so that it was not she who “operated” the vehicle over the fog line . . .

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            • wsbob July 17, 2012 at 11:33 pm

              “in the moments between when the vehicle was in the travel lane and when it was on the shoulder striking someone, either she was or she was not operating the vehicle, period. …” are

              That’s right; for some brief seconds, she may not have been operating the vehicle, and if so, why? That question is central to the question of whether or not the vehicle was being driven carelessly.

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              • bjorn July 17, 2012 at 11:36 pm

                This is like excusing a DUII driver from responsibility for a crash because they passed out before impact. If the car is moving and you are behind the wheel you are by law operating the vehicle.

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                • wsbob July 18, 2012 at 12:18 am

                  “This is like excusing a DUII driver from responsibility for a crash because they passed out before impact. …” bjorn

                  Are you joking? Comparing DUI, a known contributor to careless and reckless driving, to the cause of this collision which is not known?

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                • are July 18, 2012 at 7:48 am

                  it’s an analogy, bob. we are focusing on the word “operate.” are you ready? okay. you have access to the internet. try to find references to cases in which someone offered as a defense to a drunk driving charge that he was asleep at the wheel of a car stopped on the shoulder with the motor running. there are plenty of them out there. the defense loses. the guy was “operating.”

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              • are July 18, 2012 at 7:18 am

                okay, bob, if you want to say that someone behind the wheel of a moving car is not operating it, you have proven that you are not eligible to participate in a sensible conversation

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      • El Biciclero July 18, 2012 at 10:10 am

        Come on, bob–again, barring some heretofore undisclosed mechanical, medical, or third-party intervention, what else–other than intention–would cause someone to drift off the road? I’m all about Truth, Justice, and so forth, but I think we’re all trying to figure out what it is about driving off the road into a safety-vested cyclist isn’t careless. Given that I don’t think a driver being careful would do this, what other conclusion is there, and why doesn’t OSP see this? I know–they must know something we don’t know about the circumstances that made this just an oopsie. Nobody’s fault, really, just random objects bouncing around in Newtonian fashion.

        Nobody is assuming the driver did anything, least of all Christeen Osborn.

        Give us an example of some evidence that would convince you the driver wasn’t distracted or careless. A bee flew in the window? Looking at scenery? Phone rang? Passenger passed out? Fighting with someone in the car? Or are you waiting for some revelation about mechanical/medical/etc. issues that took control of the van away from the driver?

        It’s unfortunate, but too often the “prejudice” goes against vulnerable road users, not the other way around.

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        • wsbob July 18, 2012 at 7:41 pm

          “…I’m all about Truth, Justice, and so forth, but I think we’re all trying to figure out what it is about driving off the road into a safety-vested cyclist isn’t careless. …” El Biciclero

          All that’s known to the public, is that the vehicle went off the road, and someone was behind the wheel. It’s not known that carelessness on the part of the driver was the reason the vehicle went off the road. Without at least some details from an investigation of the collision and also, interviewing and testing of the driver, I don’t particularly see a lot of merit in speculating about what may have caused the collision.

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          • El Biciclero July 19, 2012 at 10:46 am

            I think I know what the problem is: you seem have a different definition of “careless” than everyone else. If careless is the opposite of careful then this driver meets the definition. If “careless”, as ‘are’ has mentioned means driving “in a manner that endangers or would be likely to endanger any person or property”, I think it is safe to say that this driver pretty well drove in a manner that DID endanger–and critically injure–Ms. Osborn. Are you arguing that Ms. Cortese hadn’t been driving carelessly for long enough beforehand to establish some kind of pattern of careless driving? I don’t think the statute requires any history of weaving and swerving to establish beforehand that a driver is obviously doing something careless. Are you arguing that she wasn’t driving? That’s what it sounds like. That at this crucial moment, suddenly Ms. Cortese left her body and cannot be held responsible for allowing her vehicle to “drift” into Ms. Osborn. Are you arguing that Ms. Cortese didn’t see anything wrong with driving on the shoulder and did not believe that driving there would be likely to endanger anyone?

            Please give an example of the kind of thing you are (apparently) imagining might come out that would “prove”–or even suggest–carelessness was NOT a factor here. Counter-speculate!

            I think the speculation going on is in large part fueled by past stories like this where drivers who seemingly obviously did something careless or reckless and injured a cyclist are either not cited or cited for minor offenses.

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            • wsbob July 19, 2012 at 11:12 am

              “…Are you arguing that Ms. Cortese hadn’t been driving carelessly for long enough beforehand to establish some kind of pattern of careless driving? …” El Biciclero

              I don’t mean to be arguing; rather, I’ve just been putting forward various ideas occurring to me, suggesting the conclusion various people have drawn on the slimmest of information available about the driver of the vehicle, that she was careless in its operation…is at least premature.

              There’s been only one, alleged witness, Christina Carrillo-Cowan, that’s posted a few comments to the bikeportland stories about this collision. She claims to have been driving directly behind the motor vehicle involved in the collision. For how long prior to the collision? Hasn’t said. Also hasn’t reported any indication of careless driving other than the move of the vehicle from the main lane to the shoulder of the road and into the person on the bike.

              The case is apparently going to court where details of interviews between the police and the person driving will likely be heard. That may give a better opportunity to learn what kind of shape the driver was in, and what may have caused the collision.

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            • Chris Tuttle July 19, 2012 at 5:01 pm

              @wsbob and el bici: good points, both of you. It’s pretty easy to go down a rabbit-hole when trying to define what “careless” or other legal standards mean. But it seems to me that carelessness should be presumed when certain things happen, such as drifting all the way onto the shoulder or all the way into the on-coming traffic lane, or rear-ending another vehicle. The driver should then have a chance to rebut this (e.g., I was swerving to avoid a dog). The traffic court judge can then decide whether the driver’s story is believable. This type of presumption seems pretty reasonable when we’re talking about modest fines, temporary suspension of driver’s license, etc. Some people here have said the situation justifies permanent revocation of the driver’s license. For me, this harsh of a penalty shouldn’t be imposed until there’s proof of recklessness or outrageous disregard for the safety of others (but I guess we have another definition problem). But texting while driving? Angry Birds while driving? Reckless.

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            • 9watts August 3, 2014 at 7:28 am

              “Are you arguing that Ms. Cortese hadn’t been driving carelessly for long enough beforehand to establish some kind of pattern of careless driving? I don’t think the statute requires any history of weaving and swerving to establish beforehand that a driver is obviously doing something careless. ”

              El Biciclero,
              I’m chagrined to note that your hypothetical scenario (w/r/t the VRU) has now come true in a bizarre ruling by the NY Court of Appeals. According to last week’s Monday Roundup, which linked to a Streetsblog article,* New York’s highest court apparently does think a history of swerving and weaving before killing a pedestrian with a stolen minivan is sufficient to reduce the charges and affect the sentencing:
              “[W]e conclude that the evidence was legally insufficient to support defendant’s conviction for depraved indifference murder,” wrote Judge Jenny Rivera for the majority, “because the circumstances of this high-speed vehicular police chase do not fit within the narrow category of cases wherein the facts evince a defendant’s utter disregard for human life.”
              “In explaining his driving, defendant said he tried to avoid hitting cars and pedestrians, and that he did not know the neighborhood well and drove down the one-way streets by mistake. Defendant said he was lost when he ended up on Manhattan Avenue, and that he was avoiding cars as he evaded the police. According to defendant, he was going against traffic and looking in his rearview mirror for the police immediately before he struck the victim. When he looked forward again, defendant said he saw the victim and that he thought he ‘hit the girl in the hand or something.’ When he saw more people and traffic two blocks later, defendant decided to crash into the parked car to avoid hurting anyone else. He also expressed remorse for his actions.”

              http://www.streetsblog.org/2014/07/23/new-yorks-top-court-exhibits-depraved-indifference-to-pedestrians-lives/

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      • Eric Moody July 18, 2012 at 1:13 pm

        The “fact” is the driver swerved into the shoulder – there is no assumption there. Whether distracted or not shouldn’t matter. It was her responsibility as a driver to keep the damn vehicle between 2 lines on the road and not run into something in front of her – if she can’t do that than she shouldn’t be driving. If she can do that but didn’t do it when a cyclist (or pedestrian or whatever) is in front of her it should be more than a misdemeanor. Running over a mailbox might be a misdemeanor but over a person?!?!?????

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  • eric July 17, 2012 at 5:06 pm

    Wow, I’m baffled as to why law makers/enforcers are so hung up on the circumstances surrounding these collisions. It’s like they’re saying “driving a 2 ton vehicle in any manner you like is safe for yourself and others unless you’re 30mph over, drinking, texting, or are sleepy.”

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  • wsbob July 17, 2012 at 5:36 pm

    “…Noted bike lawyer Ray Thomas, who helped pass the VRU law with the Bicycle Transportation Alliance back in 2007, feels that the OSP got it wrong this time. “This clearly should have been a VRU case,” …” maus/bikeportland

    Mr. Thomas…Why do you think the driver’s involvement in this collision should have been a VRU case? If Ray Thomas explained why he thinks what he does to bikeportland…this weblog’s publisher-editor Jonathan Maus hasn’t published his explanation. Does Ray Thomas really understand Oregon’s VRU law? Maybe not.

    The involvement of the driver of the vehicle in its departure from the road’s main lane to its shoulder has to be known before a determination of careless or reckless driving can be arrived at. The fact is, either no one knows, or know one is saying what brought the vehicle to leave the main lane while Cortese was behind the wheel.

    Cortese apparently had been driving along Hwy 101 for some unspecified period of time, just fine…when suddenly for no reason known to the public…her vehicle leaves the road and hits someone. Why? Isn’t anyone, including Ray Thomas more than a little interested..in why her vehicle left the road before wanting to punish her for a crime she may not be guilty of? Interested enough to seek out details of investigation that have been conducted, and studying them, possibly publishing them here, or elsewhere the public could have easy access to them?

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    • bjorn July 17, 2012 at 6:13 pm

      Jonathan I think that bob’s above post should be removed from the comments. It just trolling. Ray wrote the law, and I helped edit it, this is exactly the type of incident that it was written to address, and Ray knows more about the law than anyone. You are required to maintain your lane and not taking the care necessary to do so, then hitting a VRU and seriously injuring or killing them is precisely what the law covers, and is what happened here. The idea that even when we have witnesses to the careless behavior we still can’t get the OSP to enforce the law is ridiculous. They seem to be able to set up stings addressing the dangerous behaviour of not changing lanes when a trooper has someone pulled over on the highway. Their unwillingness to use the VRU law in light of how hard they pushed for their own passing distance law seems hypocritical.

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      • wsbob July 17, 2012 at 6:31 pm

        bjorn…think. You may have helped Ray Thomas edit this law, but apparently it would seem the language of the law wasn’t written sufficient to achieve the outcome that certain advocates of better protections for vulnerable road users may have had in mind.

        Don’t blame OSP…and all the lawyers advising them, including Oregon’s attorney general, for what this law will not allow them to do.

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        • bjorn July 17, 2012 at 6:48 pm

          Please point me to where the state’s attorney general John Kroger has commented on the Vulnerable Users Law?

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          • wsbob July 17, 2012 at 7:23 pm

            In reference to the Oregon AG, I was referring to the state’s legal hierarchy. If I understand correctly, the highest state legal authority government workers answer to is the Attorney General. That person is Ellen Rosenblum.

            http://www.doj.state.or.us/

            I would think the OSP’s determination of the law’s coverage would have to be consistent with the AG’s oversight of carrying out the law. If the OSP gets it wrong, I would think the AG would be concerned, and follow up. If you really think the OSP has it wrong, maybe a letter to Ms Rosenblum would be something to think about.

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            • bjorn July 17, 2012 at 7:37 pm

              I didn’t realize that Kroger had just resigned, regardless it appears that you agree that your statement that the Oregon AG had weighed in on this incident or the law in general was not true. We worked hard with law enforcement and several DA’s when drafting the law to make sure that it would be applied correctly. This is a case where the officer is clearly not applying the law correctly, the only question is if it is due to ignorance or willful misapplication.

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              • wsbob July 17, 2012 at 8:04 pm

                “…it appears that you agree that your statement that the Oregon AG had weighed in on this incident or the law in general was not true. …” bjorn

                I don’t agree with your conclusion here, and that’s not what I originally implied. I simply said the AG advises the OSP, and I think that’s probably true to some extent.

                In other words, if there were a question about the extent to which the vulnerable road user law could be applied to something a motor vehicle operator had done that was illegal or criminal while behind the wheel of their vehicle…a question that couldn’t be sufficiently answered by more immediate legal advisors, the OSP would call on the AG.

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            • are July 17, 2012 at 7:45 pm

              811.135 existed as careless driving before the vulnerable user language was added. the attorney general has never issued an opinion interpreting the language, before or after (search for the word “careless,” search for the word “vulnerable”). the attorney general issues opinions when she is asked, she does not volunteer. if the state highway patrol is confused, they can ask her for an opinion. they have not done so. what we have is a mindset that confuses the word “careless” with the problem of proving state of mind. maybe we should rewrite the statute to change the word to something more descriptive, like “inexact.” this is a traffic violation, not a criminal statute, and the prosecutor does not need to prove anything other than that she operated the vehicle in such a way as to endanger.

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        • are July 17, 2012 at 7:11 pm

          not a problem with the language, bob, a problem with getting the police and the traffic courts to fall in line.

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          • wsbob July 17, 2012 at 7:54 pm

            are
            not a problem with the language, bob, a problem with getting the police and the traffic courts to fall in line.
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            What are you even talking about: “…getting the police and the traffic courts to fall in line.”.

            Falling in line? With who, or…with what? Explain if you’d like.

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            • are July 17, 2012 at 8:41 pm

              yes, i would like to explain. the statute was enacted to address this very situation. the police are reluctant to charge, even though the circumstances unequivocally justify the charge. presumably the police are reluctant because they foresee difficulty securing convictions — in traffic court, no less, on a charge that is no more difficult to prove than improper lane usage.

              sorry to use the phrase “fall in line” to describe, um, adjusting policy to come into conformity with the expressed intent of the legislature.

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              • wsbob July 17, 2012 at 11:22 pm

                “…even though the circumstances unequivocally justify the charge. …” are

                Justify the charge? Unequivocally? As I’ve basically answered to other people commenting about this incident, that want to conclude that the driver was operating the vehicle carelessly, unless you’re privy to information about the collision that hasn’t been reported in the news, you don’t know what all the circumstances were. You don’t know that the person behind the wheel was driving carelessly.

                If the language of the law had been written something to the effect of “Failure to stay within a lane of travel, resulting in injury or death of a vulnerable road user’, the coverage of the law would be much different, I think. Better? Worse? Not so easy to readily say. Would it have been more effective in achieving the protection for vulnerable road users that their advocates sought? I’m not sure. Maybe.

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                • are July 18, 2012 at 9:04 am

                  direct response to this below, failed to nest

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        • Greg July 17, 2012 at 8:24 pm

          wsbob. think.
          note – playing devil’s advocate does not presume thinking. it only presumes negation.

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      • JAT in Seattle July 18, 2012 at 8:44 am

        bjorn,
        I’m dismayed you wold call for the deletion of wsbob’s comment; he has a long history of meaningful contribution here. It can get spirited here, but the argument here is an important one: legislation was written and yest not relied upon when a collision of the sort envisioned by the legislation happened. Is the legislation broken? Maybe. Don’t ask your big brother to beat up those who disagree with you; focus your displeasure on the authorities failing to enforce the law if it’s an adequate one or on the law if it’s an inadequate one.

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        • are July 18, 2012 at 12:12 pm

          while i agree bob’s post raised a valid point, that ray thomas did not fully explain his reasoning, his tone was unnecessarily dismissive of mr. thomas’ efforts, of which bob apparently knows nothing, and actually his own analysis of the statute was fundamentally flawed.

          however, the comment should not be deleted because it became the seed for a lot of worthwhile dialogue on the nuances of the law, the difference between a violation and a misdemeanor, the difference between punishment and rehabilitation, etc.

          dialogue to which bob himself has since contributed mostly trash.

          i think many of us would also disagree that bob has a “long history” of contributing anything but poorly reasoned, narrow-minded opinion and disparagement of other contributors.

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          • wsbob July 18, 2012 at 7:28 pm

            “…his tone was unnecessarily dismissive of mr. thomas’ efforts…” are

            Not at all. Ray Thomas is quoted in this bikeportland story saying: “…”I wish the law enforcement community was more familiar with the VRU law.” Ray Thomas

            To which I responded: “…Does Ray Thomas really understand Oregon’s VRU law? Maybe not. …” wsbob

            Because, Ray Thomas has gone on record here at bikeportland, presuming the law he is said to have helped craft would in theory apply to the involvement of the driver in this collision, when as it turns out, the OSP, after being obliged to consider applying it to the real live situation this collision represents, finds it cannot cite the driver under this law. I’m sure Ray Thomas and other people did work very hard on this law, but it appears they didn’t envision real life scenarios their work could apply to, and didn’t clearly describe in the law’s writing, driving behavior they sought to address.

            And by the way, ‘are’…you can knock off the juvenile insults to thoughts of mine or anyone else’s you don’t have an effective rebuttal to, or agree with…anytime.

            Understanding this law and to whom it does and should apply isn’t a game. You may not be one of them, but I believe there are people that are interested in understanding how subtleties in language used in laws like this one, adequately convey the intent of the laws’ creators, and the ability it has to achieve the desired objective.

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    • Eric Moody July 18, 2012 at 1:16 pm

      I’m glad you explained this the way you did. Now it does sound more clearly like an open and shut case of attempted manslaughter! Thanks.

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  • Suburban July 17, 2012 at 5:41 pm

    As one who operates a motor vehicle on Oregon highways regularly, my observation is that very few drivers are able to stay within their relatively wide lanes, regardless of the width of their machines. Driver education would be a good start, VRU with teeth will be a proper follow up.

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    • KJ July 17, 2012 at 6:14 pm

      they also seem to be compleatly unaware as to how wide their vehicles are or how long. Snark here but i kind of think we should have to pass some kind of spatial skills test before we get a licence.

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    • El Biciclero July 18, 2012 at 10:32 am

      “Driver education would be a good start…”

      Heh. That’s a good one. From a certain perspective, VRU provisions added to an existing careless driving statute are a band-aid on a broken leg. What we truly need are much, much, higher licensing standards in this country. Drivers here don’t know what to do in the most basic of traffic situations. Watch what happens when an emergency vehicle approaches–drivers freak out. I’ve had people ask me “when do I have to stop for a school bus?” Drivers think having a turn signal on gives them right-of-way. Speeding is not even considered an infraction until you’re 15 over. Most people think that when they are backing up, as from a parking space, others must yield to the backer-upper. Basic things like this are not known by the majority of the driving public, let alone what to do if you encounter ice or have a blowout, or find yourself “drifting” off the road (don’t over-correct and flip yourself). Drivers don’t even think to actively look for cyclists or pedestrians; they mostly assume the road will be clear.

      All of this is a result (IMO) of extremely poor training and abysmally low licensing standards. If all we did was require a certificate from an accredited driver training instructor prior to allowing folks to take the State license test–and if the standards for passing the state test were raised–I think it would make a huge difference 10 or 15 years from now when the next generation of drivers pulled out onto the road.

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      • CaptainKarma July 18, 2012 at 1:33 pm

        I totally agree with all that. Unfortunately due to unfair tax codes and tax breaks, we can’t even keep dmv offices *open* all the time.

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        • El Biciclero July 18, 2012 at 2:29 pm

          Ah. I forgot to mention that a license would be more highly valued if it could be lost more easily and had to be saved up for. Private driving instructors would not cost the DMV anything, neither would raising the passing score for a driver’s test. Any costs associated with redesigning the test or administering an extended test should be borne by license-seekers. The current fees for the knowledge and driving portions of a non-commercial class C driver’s license are $5 and $9 respectively. Those fees could easily be raised to $20 each. If obtaining a license requires little investment (the actual first-time licensing fee is $68), it isn’t seen as the “big deal” it needs to be. Right now, licenses are too easy to get and too hard to lose.

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  • dwainedibbly July 17, 2012 at 5:45 pm

    Getting it wrong is bad. What’s worse is to set a bad precedent. This will make it harder for this statute to be invoked in future cases.

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    • Alan 1.0 July 17, 2012 at 8:08 pm

      Legal precedent is established by appellate court decisions, so not filing the charge can’t set precedent. I agree that it adds another pebble to the mountain of social inertia which views driving as a right instead of a privilege.

      Speaking of precedent in general terms, does anyone know if Oregon’s VRU law has been used in other cases? How often? What circumstances? Or would this be a “first?” (which might explain why cops & prosecutors are reluctant to try it)

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      • 9watts July 17, 2012 at 8:15 pm

        My understanding is that Candace Palmer was cited under the VRU which is one reason I’ve mentioned it a few times here. I don’t know if there were other cases.

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        • Alan 1.0 July 17, 2012 at 9:07 pm

          Oh, right, and you mentioned that Palmer was acquitted by a grand jury. How common is it to convene a grand jury for a traffic infraction? I don’t recall hearing of such a thing. Perhaps that example has to do with why other cases of VRU are not filed?

          A jury of peers is a good bet for Washington drivers in a similar predicament.

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      • are July 17, 2012 at 8:30 pm

        it may not “set” a precedent, but what we seem to be hearing is that the state highway patrol will not charge in what seems obviously an appropriate case. the public info officer presumably speaks for house policy. an appeals court will rarely have occasion to review a traffic charge, as not that much is usually at stake.

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      • Dwainedibbly July 17, 2012 at 8:35 pm

        I’m not talking about a legal precedent. I’m refering to what will be going through the mind of the OSP officer who has to deal with the next case like this. “The other cop didn’t cite the driver in his case, so I’m not going to either.”

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        • Alan 1.0 July 17, 2012 at 9:55 pm

          Got it. I lumped that as “social inertia,” and I think “car culture” and “car head” (and other terms) express similar sentiments.

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  • GlowBoy July 17, 2012 at 6:00 pm

    “In this case, the only fact that the driver drifted onto the shoulder may not of itself be careless without some other factor such as fatigue, distraction, talking on cell phone or texting, etc…”

    Incredible. Unless extenuating circumstances (sudden gust of wind, oncoming vehicle over the centerline) are indicated, how is drifting onto the shoulder NOT prima facie evidence of carelessness?

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  • Seth Alford July 17, 2012 at 6:03 pm

    If OSP were to charge under VRU, the prosecution would happen in the county where the collision was, right? Wouldn’t that be Clatsop County, in this case? So the DA hndling the case would be Josh Marquis? I wonder if that is a factor in what OSP is doing, or rather, not doing.

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  • TV commuter July 17, 2012 at 6:10 pm

    Is this a good candidate for a citizen intiated petition? (http://bikeportland.org/2006/01/04/new-campaign-to-bring-motorists-to-justice-783).

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    • are July 17, 2012 at 10:09 pm

      i think as a practical matter you would have to have witnessed the event in order to swear the petition

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    • Spiffy July 18, 2012 at 8:04 am

      YES!

      now somebody just needs to convince a witness such as Christina Carrillo-Cowan to file one for reckless driving…

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  • KJ July 17, 2012 at 6:11 pm

    and if she drifted left? into the oncoming traffic lane? what then? I think this clearly has to do with the officer being able to sympathize with the driver, that ‘anyone could drift into the shoulder, i have done that, it’s not careless…” it seems like careless is being interpreted as reckless.

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  • Allan L July 17, 2012 at 6:13 pm

    An important function of traffic laws and their penalties is deterrence. As long as it remains possible for car drivers to injure and kill cyclists or pedestrians without significant consequences, this function is not being served. This creates unnecessary risk to cyclists and walkers.

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  • bjorn July 17, 2012 at 6:44 pm

    One thing that makes this even worse is that the law was specifically written with a penalty that was not too severe in an attempt to get the police to enforce it rather than just looking the other way. The punishment focuses on taking a traffic safety course and completing community service rather than jail time.

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  • are July 17, 2012 at 7:16 pm

    in a couple of comments earlier in this thread, i have indicated why the vulnerable user law does not require proof of the driver’s state of mind. the payoff for persuading the state patrol to issue the charge in this particular case is modest, but the payoff for persuading the patrol to rethink its position on what constitutes “carelessness” could be huge. the BTA should take this opportunity to push for enforcement, and should sit down with whoever it takes farther up the food chain to see that charges are issued in these cases. as defined in 811.135, “carelessness” is essentially a strict liability charge. it should be treated as such.

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  • Mike July 17, 2012 at 7:22 pm

    So my take on comments here are that you all think that the police don’t really care that a cyclist was almost killed by a car? Really? Or that if it was a car vs car they would put more effort in punishing the offender. Come on people, live in reality!! You don’t know what they think or what constraints they are under to charge the offender.

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    • 9watts July 17, 2012 at 7:24 pm

      Mike:
      some of us are reflecting on a pattern.

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      • Mike July 17, 2012 at 11:03 pm

        Well, it seems like people are calling out the person’s that respond to such accidents. Point the fingers at the lawyers. It ticks me off that cyclist portrays themselves as second class citizens. That my be true when it comes to infrastructure but when a trauma is involved, lead the darn police out of it!!!!!

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        • Charlie July 18, 2012 at 12:51 am

          I for one will call you on this and say yes, I’m calling out the law enforcement on this. You speak as if they can do no wrong. I have been in situations where I’ve had to educate officers on vehicle code. Where I live police frequently speed and rarely signal turns, and I was once lectured by an officer for yelling at a motorist who nearly hit me when suddenly turning (across two lanes) without signaling or looking (I was walking in a crosswalk with the walk signal, and the yelling I was doing was simply emptying my lungs to avoid being hit). The officer was soon to learn that my cousin is the police captain (and believe me I’ve lectured him on how his officers drive). Trust me, I am not vilifying these people who I greatly appreciate for keeping order and protecting us, but I will point out they are human and make mistakes.

          I do not buy Lt. Hastings explanation here and believe that the VRU law *possibly* should have been invoked, but my take is that it’s probably such a new/unused law that inexperience applying it is the main issue. The driver did not pass the cyclist unsafely because the driver did not pass the cyclist – she hit her. Proper application of forensics should have determined enough evidence for or against application of the VRU law – assuming the OIC was knowledgeable of its application. Either that was entirely the case, or there was a mistake made and it’s now too late to apply it properly. We can only speculate.

          You say that we should blame the lawyers, but they apply law in the courtroom and not at the incident scene. It is up to police officers to be fully practicable in (current) law, and in my experience that is not always the case. Calling them out and not appreciating their services are two different things though.

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        • Spiffy July 18, 2012 at 8:14 am

          Mike
          It ticks me off that cyclist portrays themselves as second class citizens.

          it ticks me off that cops treat cyclists like second class citizens…

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          • Mike July 23, 2012 at 9:38 pm

            If someone breaks into your house while you are sleeping who do you think is going to rescue you when you call 911? You may hate them now but I would bet the majority of cops have the best intentions and that includes those that come across a grizzly scene like someone hit by a vehicle.

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            • Opus the Poet July 23, 2012 at 10:23 pm

              The question is not response to a crime in progress, it’s the reaction to the crime that was committed. And OSP would not be the ones to respond to a home invasion…

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    • Greg July 17, 2012 at 8:29 pm

      We don’t, and can’t, know what others think. We can only know what they say and their actions.
      Judging the OSP’s words and actions, and reading the law, I think the OSP is neglecting their duty.

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  • are July 17, 2012 at 7:46 pm

    jonathan, thanks for this. it would have been better if ray had taken the time to explain his conclusion.

    on the double jeopardy thing, interesting question. to prove improper lane usage, all they have to show is that she left the travel lane. to prove vulnerable user, they would also have to show that someone got hurt, which should take it outside the double jeopardy problem.

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    • are July 17, 2012 at 8:47 pm

      there are a couple of state appeals court and supreme court decisions to the effect that a charge of careless driving under 811.135 (a violation) does not preclude a separate, later charge of reckless driving under 811.140 (a misdemeanor). so again, we should be good here. but the important thing is to press the state highway patrol to rethink their position on this.

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  • chasing back on July 17, 2012 at 8:59 pm

    I am dismayed that a cyclist is run down in broad daylight by an automobile, goes to the hospital in critical condition(for an extended visit in intensive care and likely lifelong impact) and the auto driver gets a $260 dollar fine. NO loss of license or driving privileges and no jail time, even temporarily.

    I can’t come up with any way this makes sense. As a cyclist, and driver, it depresses me.

    It proves that as cyclists we risk our lives every single day with motorists distracted by all manner of gadgets and in vehicle activities. When a cyclist is struck, the motorist faces no real legal sanctions. I recognize living with your actions can be tough, but so is living with a reconstructed body so no win for anybody there.

    It appears the law and enforcement will take years, if ever, to reach a point where drivers actually face repercussions and drive like it. I wish i had hope for any real long term change, both legal and social, in drivers habits which improved my safety, but I just don’t feel it, especially after a $260 ticket.

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  • Kristi Finney-Dunn July 17, 2012 at 9:05 pm

    This all just makes me sick to my stomach and feeling hopeless. I suppose I shouldn’t comment unless I have something productive to say or some kind of possible solution in mind, but I’m going to do it anyway because I feel sad and despairing and it’s coming up on a year since my son’s senseless death and people are still needlessly being killed or injured. And whether the person wreaking the havoc was drunk or talking on a phone or looking at a pet in the backseat or changing the radio station or sneezing… if you kill or injure someone, the consequence should be more than a $260 citation.

    And as for Mike asking if we “really” believe the police don’t care about a person on a bike as much as a person in a car, yes, I “really” believe that. And not just the police. Had this driver “drifted” into the oncoming lane and struck a motor vehicle, I think this would be a totally different story. That being said, motorists kill and injure other motorists all the time, but even that no one really notices. It’s just the price to be paid for the convenience of driving… and, of course, “it won’t happen to me.”

    RIP Dustin Finney. I miss you so much.

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    • DoubleB July 17, 2012 at 10:58 pm

      Read my comment above about the incident in Colorado. Motorists carelessly killing other motorists don’t go to jail very often either. This isn’t a “bias” situation. The law is generally lax when it comes to poor drivers regardless of who they hit.

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      • Chris I July 18, 2012 at 7:51 am

        I tend to agree with you here. I would imagine that everyone arguing for increased punishment here would be making the same argument if a motorist was injured or killed in the same circumstance. Because we are vulnerable users, we are especially sensitive to the seemingly lax approach to driving enforcement.

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        • spare_wheel July 18, 2012 at 8:41 am

          i think many people are making this argument. i look at the carnage of our roads with utter disgust. we urgently need mandatory driver education and strict re-licensing exams (including driving exams) on a periodic basis.

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          • DoubleB July 18, 2012 at 9:34 am

            Spare, two commenters have argued that there would be more punishment if the driver had either hit people changing a tire on the side of the road OR drifted into the other lane and hit oncoming traffic. Cyclists seem to believe cyclists are singled out. That’s really not the case.

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            • Jonathan Maus (Publisher/Editor) July 18, 2012 at 9:44 am

              DoubleB,

              people on bikes might not be “singled out” so to speak; but there is absolutely a difference in the way police (in general) treat cases involving someone on a bike vs. cases where both parties are in cars. It’s about cultural bias and perspective. It’s not that police are bad people, it’s that they are simply victims of a very pervasive and powerful force in American society that sees bicycling in a fundamentally different way than it sees driving a car. It’s simply naive to think these biases are not at play when a police officer approaches an investigation like this. As someone who has been very close to this issue for seven years, I have seen it first hand time and time and time again. I can hear the bias in police officer’s voices, and I hear about the bias in numerous stories told to me by people victimized by it. In many ways, it is very similar to racial bias, although I say that knowing most people reject that idea and get upset when they hear the comparison made. But I stand by that comparison. I like the term transportationism – which can be defined as judging people by their mode of transportation. There are stereotypes and judgments made about people on bicycles just like many Americans make about people’s skin color. Not saying it’s the same, just saying there are some parallels that I think are useful/valid in understanding this issue. Thanks.

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              • Devin July 18, 2012 at 10:07 am

                You mean like the comments of why are riding the bike, DUI, no job, etc.?

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                • El Biciclero July 18, 2012 at 3:15 pm

                  And the notion that cyclists are assuming all the risk when riding among motor vehicles; that they “should have known better” when some driver runs over them. The assumption (in most cases) by law enforcement and the public that when a bike and car collide, the cyclist must have done something wrong, since cyclists never obey the rules of the road anyway. Statements such as “the cyclist was going too fast”, when really they may have been going 20mph in a 35 zone, but someone’s opinion is that a bike just shouldn’t ever go that fast.

                  Stuff like that.

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              • DoubleB July 18, 2012 at 9:26 pm

                As a black man, that might be the most offensive thing I’ve read on this site and that’s saying something.

                So you’re telling me you’ve been hosed by the police because you’re a cyclist? You’ve been arrested and handcuffed because you’re a cyclist? A gun has been pointed at you while you’ve been frisked because you’re a cyclist?

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                • El Biciclero July 19, 2012 at 1:29 pm

                  He’s not saying that at all–although there was one famous case from a few years ago where a cyclist was tackled (knocked off his bike) by an officer who reportedly did not identify himself when asking the cyclist to stop, then didn’t think he was stopping fast enough. The cyclist was subsequently TASEd and arrested. The cyclist’s original offense? Not having a headlight at dusk. When was the last time the cops PITted a car, dragged the driver out and TASEd and arrested him for not having his lights on?

                  Bias exists. In a multitude of traffic situations, including collisions, drivers treat each other and are treated by law enforcement differently from cyclists–usually to the cyclist’s disadvantage. It is in no way comparable in scale or gravity to the U.S. Civil Rights struggle or modern-day, ongoing racial bias, but it is there. Jonathan makes the (perhaps ill-advised) comparison because it is about the only thing people can relate to in that realm. Unfortunately, it usually ends up sounding like comparing an H-bomb to the Sun.

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                • 9watts July 19, 2012 at 1:41 pm

                  Jonathan qualified the comparison carefully. I am not sure it was ill-advised. I trust people can differentiate between a statement that draws parallels, points out similarities, while noting differences in scale and severity, and a blanket equation of two systems of bias.

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                • DoubleB July 19, 2012 at 3:44 pm

                  9watts:

                  Jonathan said and I quote: “In many ways, it is very similar to racial bias, although I say that knowing most people reject that idea and get upset when they hear the comparison made. But I stand by that comparison.”

                  He compared it directly to racial bias. Either he has no idea of what’s happened in this country, state, or city with regards to race (not likely) or he’s equating being a cyclist to being black.

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                • q`Tzal July 19, 2012 at 3:53 pm

                  Just because a person is not “black” does not mean they can not be the subject of unjust bias.
                  America has a long and inglorious history of stepping upon, shoving aside and out right lynching of ANY minority that gets in the way of the majority’s idead of progress.

                  In this case cycling, as seen through the eyes of the majority, is a technologically inferior mode of transportation used only by the mentally deficient and socially inept.
                  The act of CHOOSING to ride a bicycle in the path of “progress” (traffic) is seen as a sign of suicidal judgment.
                  The act of CHOOSING to use a bicycle instead of an automobile is seen as tacit admission that you are unable to buy a car like “everyone else” and must be a “loser”.

                  This simply is.
                  And THIS is the bias JM refers to.

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                • DoubleB July 19, 2012 at 4:06 pm

                  El biciclero:

                  People are constantly tased in and around their cars all the time (often minorities by the way). I feel for the cyclist, but this isn’t bias. It’s the police being tools.

                  A lot of what you claim happens to cyclists happens to drivers as well. That isn’t bias.

                  “Bias exists. In a multitude of traffic situations, including collisions, drivers treat each other and are treated by law enforcement differently from cyclists–usually to the cyclist’s disadvantage.”

                  How do drivers treat each other differently? I’ve seen drivers yell at each other and attempt to hit one another as well.

                  As far as law enforcement, poor and careless driving has never been punished harshly by the law regardless of the victim. There aren’t a bunch of people doing 5-10 years in jail for killing other drivers but getting off for killing a cyclist. Is this an issue? Yes. But it’s not bias. It’s the law, regardless of how poor you may think it is.

                  All I’ve seen is this consistent harping on language by yourself and others. One statement taken out of context doesn’t prove bias. A cop says the phrase “too fast” with regards to a cyclist and bias is the first thing to come to mind. An onlooker uses the phrase “death wish” and bias is the first thing to come to mind. Of course when a cyclist uses a similar phrase, it’s immediately allayed because cyclists can use that language (and there’s nothing more biased than that). A sign points to a Greenway 2 blocks away and it’s taken to mean the city doesn’t want cyclists on Alberta. Must be bias as opposed to being informative.

                  It’s this constant nitpicking at phrases and language that must mean everyone who’s not a cyclist is against cyclists when there are logical explanations for all of the above. Does it mean that these people don’t have a bias against cyclists? No. But the jumping to conclusions based on one word or phrase is illogical and asinine.

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                • 9watts July 19, 2012 at 6:19 pm

                  Jonathan: “In many ways, it is very similar to…”

                  DoubleB: “he’s equating being a cyclist to being black.”

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                • El Biciclero July 20, 2012 at 10:13 pm

                  DoubleB:

                  I can appreciate your insights here, but bias does exist. Nobody is saying that everyone who doesn’t bike is biased against cyclists–of course not. However, there are a significant number of folks who will “buzz”, throw things at, yell obscenities or insults at, or blatantly attempt to run off the road or run down cyclists–for no other reason than that they are on a bike. Not everybody, but some people. Far more people are inordinately annoyed by cyclists “holding up traffic” when there are any number of other things that cause as much or far more delay than someone on a bike “blocking” their way for 30 seconds. There are attitudes held by many that people who ride bikes are all scofflaw, pretentious bastards, DUII losers, homeless, “dirty hippies”, or just plain weird. Sure, drivers yell at each other, but not usually just for being there.

                  But even further, here’s the thing: maybe drivers do often treat cyclists “the same” as other drivers, BUT there are things that one can “do to” a driver (engine-revving, tailgating, swerving at, short-stopping, etc.) that are not nearly as intimidating or downright life-threatening as they would be if done to a cyclist. In that sense, equal treatment means much worse treatment to a cyclist who is much, much more vulnerable than someone in a metal cage.

                  So maybe, much like sexual harassment, it isn’t so much what the perpetrator means, it’s how it is received that counts. Jonathan compares transportation bias to racial bias and you get offended. Someone mentions that cyclists on hwy 101 have a “death wish” and some of us get offended. Again, different scale, same principle.

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              • Pensive July 19, 2012 at 4:25 pm

                I agree that DoubleB is right to be offended. But it’s been my long thinking that the reckless, targeted, irrational discrimination against bicyclists, the systematic denial of the equal humanity of bicyclists – resulting in a failure to provide equal protection under the law, and society wide indifference, are an odd, and a wholly unwished for opportunity for white people to experience discrimination similar in nature to racism. There are parallels – the majority has little accountablity to it’s treatment of the minority. I think it’s an interesting window of opportunity for understanding between, majority whites and minotities.

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            • 9watts July 18, 2012 at 9:46 am

              “Cyclists seem to believe cyclists are singled out. That’s really not the case.”
              DoubleB,
              wouldn’t you agree that we have a problem, irrespective of the degree to which our legal systems’ casual regard for human life and limb on public roads extends beyond people riding bikes?

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            • Spiffy July 18, 2012 at 2:54 pm

              on Saturday a teen driving a truck in Colorado hit and killed two women changing a flat… he was charged with careless driving causing death…

              I see no reason that the driver who hit the cyclist shouldn’t be charged with careless driving causing serious physical injury…

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              • wsbob July 19, 2012 at 10:34 am

                What are the particulars of the California case you cite? Did you have occasion to read them? In that case, the driver may very well have been determined by investigation to have been driving carelessly.

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            • wsbob July 19, 2012 at 10:29 am

              “…I can hear the bias in police officer’s voices…” maus/bikeportland

              Well, what about the voices of the officers responding to this particular collision? Information related to this particular collision is what we need information about. Has Maus heard their voices in comments relative to this collision?

              If their voices in such comments betrayed ‘bias’ held towards people that bike, that would have factored into the decision about what citation to issue to the driver, that’s what I might want to read about.

              How about the voice of OSP Lieutenant and Public Information Officer Gregg Hastings? Hastings responded to questions about the collision to bikeportland via email, but has Maus heard Hastings voice elsewhere, and said he’s detected in that voice, bias towards people that bike?

              The simple fact is though, people claiming such things as being able hear bias in people’s voices, outside of actual words or phrases expressing bias, is something I’d say is due a healthy dose of skepticism.

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      • are July 18, 2012 at 9:00 am

        charging under the vulnerable user law is not a matter of sending someone to jail. it is a matter of sending them to a driver re-education program and/or community service in lieu of a huge fine and/or revoking or suspending the license.

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      • are July 18, 2012 at 12:19 pm

        first of all, we are not talking about jail here. we are talking about a suspended fine in exchange for education and community service.

        secondly, we are talking about a statute that is specifically addressed to “vulnerable users,” as defined in the statute, including road workers. not just everything involving a car. and actually, not even including someone fixing a flat on the shoulder.

        your comment about the incident in colorado might be relevant to some other discussion.

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  • Kenji July 17, 2012 at 9:49 pm

    Very troubling about OSP.

    The DA can still charge under VRUL.

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    • GlowBoy July 18, 2012 at 12:34 am

      Can the DA actually charge under VRUL? The offenses under that statute, even with the vulnerable user clause, are traffic violations and not criminal offenses. Does the DA have the power to charge people with moving violations, in addition to crimes? Anyone know?

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      • JRB July 18, 2012 at 8:16 am

        I don’t practice criminal law, but it seems to me that the sentencing provisions, bump this up to a misdemeanor, particularly the potential fine, even if the statute does not expressly say so. I would encourage everyone concerned about this case to write Josh Marquis, the Clatsop County District Attorney and encourage him to review the case. Mr. Marquis has made a name for himself as a victim’s advocate. Look what public pressure did in the Trayvon Martin case.

        In the hierarchy of advocacy, a written letter is considered to be the most effective.

        Mr. Marquis’ email is: jmarquis@co.clatsop.or.us

        The mailing address is:
        Joshua K Marquis
        Clatsop County DA’s Office
        PO Box 149
        Astoria OR 97103

        Finally his phone number is: 503 325-8581. I doubt you would actually get an opportunity to speak with him directly but you could leave a message stating your request.

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        • are July 18, 2012 at 10:02 am

          this is actually an interesting question. the kind of question wsbob might be asking if he were not so busy pursuing a failed agenda.

          ORS 153.008 defines “violation” as anything punishable by fine but not by imprisonment, provided you do not suffer a “disability or legal disadvantage based on conviction of a crime.” so far so good.

          but the state supreme court has layered another nuance over this, ruling in selness v. miller (2002),
          http://www.publications.ojd.state.or.us/Publications/S46149.htm
          that even a fine can be “criminal in nature” if (as an appeals court later summarized the ruling) “its severity cannot be justified fully in terms of the civil purposes that the penalty supposedly serves.”

          so here we are looking at a potential fine of 12.5k, which is pretty hefty. but the statute on its face says the fine is to be suspended, subject to the defendant completing a traffic safety course and putting in some community service. as a practical matter you only pay the fine if you do not cooperate.

          and the judge could order a much smaller fine, though the courts have been clear that it is the maximum potential fine that matters for purposes of this analysis.

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          • q`Tzal July 19, 2012 at 3:57 pm

            How ’bout we all stick to the subject at hand and not character assassination, mmm’k?

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        • GlowBoy July 18, 2012 at 11:41 am

          But which misdemeanor could the DA bump it up to? Reckless driving? 4th degree Assault (163.160)? Reckless endangerment (163.195)? At least based on the public evidence, it’s probably a stretch to say that the legal standards for assault or recklessness have been met here.

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          • are July 18, 2012 at 12:22 pm

            if someone wanted to go criminal with this, they would probably go to reckless driving, 811.140. but then you actually would have to get into the driver’s state of mind.

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            • JRB July 18, 2012 at 1:26 pm

              Are may well know better than me, but I think a case can be made that careless driving that injures a vulnerable road user is a misdemeanor, again on the basis that violations are not punishable by $12,500 fines. That is high even for a misdemeanor. I think the default for a Class A misdemeanor is $10,000

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              • JRB July 18, 2012 at 1:28 pm

                Correction should be “are punishable by $12,500 fine.”

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  • Rol July 18, 2012 at 12:20 am

    “In this case, the only fact that the driver drifted onto the shoulder may not of itself be careless without some other factor such as fatigue, distraction, talking on cell phone or texting, etc…”

    …or having been born during FDR’s first term. Yeah, well, somebody had to say it.

    Thing is, she didn’t just “drift onto the shoulder,” she drove into a human being. So what is it called when you drive into a human being… CAREFUL driving? Under what conditions are you not responsible for making sure there’s nothing and no one in the path of your vehicle? Are there any such conditions? There are none.

    Look, the fact is, she hit a human, so there are only 3 possibilities to explain it:
    1) She was careless, so it’s careless driving.
    2) She did it on purpose, so it’s attempted murder.
    3) She lacks the faculties to properly control the vehicle and avoid hitting human beings, so it’s careless driving for not admitting that, and she loses her license forever, which at age 78 is frankly not that long. Oh am I being callous toward granny? Perhaps I should show my respect by letting her do this again? Kill someone maybe?

    78 is pretty up there. Older than my dad was when he gave up driving, due to poor vision. Responsible and rational man that he is, he couldn’t accept being a risk on the roads. He still lives in a car-dependent area but now hires someone to drive him to errands once a week. I don’t know the details but I’m pretty sure it’s cheaper than maintaining & insuring a car. And he didn’t die of starvation, no one found his skeleton on a wind-swept plain with buzzards and whatnot… he’s doing fine at age 87, how you like that eh?

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    • Spiffy July 18, 2012 at 8:24 am

      went to a bday party the other week and an elderly neighbor came by, very slowly, using her walker… many people were excited she made the long trek across the street… somebody said encouragingly “and she’s still able to drive!”… a chill ran down my spine… she was clearly not qualified to drive…

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      • CaptainKarma July 18, 2012 at 2:03 pm

        Ageism. We we doing so well without bringing that cheap shot into the discussion. Psychological studies have established that experience and wisdom (less risk-taking decision behaviors) clearly compensate and/or outweigh mere chronological age as a factor in successful airline pilot performance.

        Of course every individual performs, learns, reacts differently.Without evaluating this driver, blanket statements based on her age are meaningless. Many younger drivers are undeniably higher risks than are older drivers and vice versa. All drivers (including you) should be road-tested regularly.

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        • Rol July 18, 2012 at 4:32 pm

          I’ve got a great way to evaluate this driver: “Has she hit any human beings lately?”

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    • Eric Moody July 18, 2012 at 1:31 pm

      Amen! Couldn’t agree more!

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  • Colleen July 18, 2012 at 5:45 am

    What I don’t understand is her husband was in the car with her. Why didn’t he say..”watch out”. It seems to me they were both distracted. I really wish someone would contact her and ask what happened. Something doesn’t add up.

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    • 9watts July 18, 2012 at 7:11 am

      I agree, Colleen, a whole lot doesn’t add up.

      It shouldn’t be this complicated, this obtuse, this difficult for the public to follow. If the last word from law enforcement is (and it is starting to seem so) that Wanda Cortese only broke a tiny rule that neglects to even acknowledge the fact that she hit and nearly killed a human being with her car, then our system is failing us. I would think there would be in place a system for redress, where someone could appeal Lt. Hastings’ interpretation of the laws to a higher authority. Do we really have to witness this every single time a person is killed or maimed while riding on public roads. The list of names is long and getting longer.

      Do any of you knowledgeable people know if there are laws in other states or countries that do a much better job in situations like these? Something we could read up on and reference as we try to fix this mess? I can’t imagine what it would be like to have someone in my family so mistreated, first by someone in a car and then by our legal system.

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    • Spiffy July 18, 2012 at 8:26 am

      goes along with my original assumption that they were looking at scenery… husband says “oh that’s pretty” and she turns to look as well and BAM carelessness…

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    • q`Tzal July 19, 2012 at 4:01 pm

      Hollywood legal dramas have taught me that a spouse cannot be compelled to testify against their opposite.
      I wonder if this has any basis in reality.

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  • are July 18, 2012 at 7:25 am

    [quote]
    If the language of the law had been written something to the effect of “Failure to stay within a lane of travel, resulting in injury or death of a vulnerable road user’, the coverage of the law would be much different
    [end quote]

    read the actual statute, bob. the word “carelessly” appears, but that word is then defined with reference to what the car did, not what the operator was thinking. just read the damn thing. it does in fact take the approach you are suggesting would be “much different” from what you imagine it takes.

    and incidentally, while leaving the lane may be the most common situation, it is by no means the only situation the statute is meant to address, so your proposed language would be too limiting.

    i would say try again, but i would rather you went elsewhere.

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    • are July 18, 2012 at 9:48 am

      this was in reply to a hidden comment from wsbob above, failed to nest

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  • 99th Monkey July 18, 2012 at 7:37 am

    I have a suggestion; implore Ray Thomas to contact Chrisi Carrillo Cowna who witnessed the tragedy, as stated in her comment in the local newspaper blog to advise acting on the Oregon’s Citizen Prosecution Statute (ORS 153.058). The Citizen Prosecution Statute allows regular citizens to initiate an action on a traffic ticket, to subpoena witnesses and present evidence at a trial in traffic court, and if the driver is convicted, then the conviction is a moving violation just like what would be received if a police officer had initiated the case.

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    • Spiffy July 18, 2012 at 8:28 am

      I would be willing to help facilitate this… the driver needs to be charges with careless driving to trigger the VRU law…

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  • Devin July 18, 2012 at 7:49 am

    Was she able to control her vehicle? It does not sound like it, which IMNHO means she was driving carelessly. There is a crazy video on RFID chips http://youtu.be/zHdrTiPcQ3g where around 42 seconds, this lady talks about her car losing control. WTF, your car does not drive itself. People who drive tend not have an attitude of self-responsibility to their driving.

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    • Spiffy July 18, 2012 at 8:30 am

      Devin
      People who drive tend not have an attitude of self-responsibility to their driving.

      why so specific? since when does anybody have responsibility for any of their actions these days?

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      • Devin July 18, 2012 at 8:39 am

        I look at how drivers are cleared of any responsibility when they hit cyclists or even motorcyclists and that promotes the idea that driving is a right with no responsibilities required. Comments like “my car lost control”, etc. also reinforce that idea.

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  • peejay July 18, 2012 at 7:56 am

    This whole thing (Lt Hastings’ response, wsbob’s comments) reads like an absurdist play.

    I’d say more, but my head hurts from all this.

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  • Jerry July 18, 2012 at 8:32 am

    This is just another example of the police not wanting to do their jobs.
    When I was right-hooked and ambulanced to Providence I called PPD to ask about the Police report they filed (they did show up at the scene).
    Me: can I get a copy of the accident report?
    PPD: There isn’t one. It is only required if injuries are life threatening.
    Me: I suffered a concussion and now require surgery…
    PPD: Did you die?
    Me: Ummm, no.
    PPD: Not life threatening. No accident report. No charges.

    Any wonder we think we are treated like second-class citizens?

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    • 9watts July 18, 2012 at 9:29 am

      Does anyone know if a law school class might be interested in, or may already be, looking into these patterns? Sometimes attention from folks like this can have dramatic consequences for things like the death penalty or other laws that, for whatever combination of reasons, aren’t working.

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    • El Biciclero July 18, 2012 at 11:34 am

      Hasn’t the standard been changed to require reporting if there is ambulance transport involved?

      Isn’t an accident report also required if there is damage above a certain dollar amount? I would love to see medical treatment (“body work”) for a VRU count as damage in that regard so that any treatment costing above whatever the trigger amount is would require a report. Who decides what’s life-threatening, anyway? I could cut my pinkie on a rusty piece of scrap metal and get nectrotizing fasciitis and die.

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      • Spiffy July 18, 2012 at 3:06 pm

        I thought that any incident where medical treatment is needed required a police report…

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    • q`Tzal July 19, 2012 at 4:05 pm

      This sound like one of this situations where a doctor says to the cop:
      “Where did you go to medical school? Is “not life threatening” your professional medical judgement?”

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  • Joe July 18, 2012 at 9:03 am

    Should Hwy 101 collision have triggered ‘vulnerable roadway users’ law?
    I say YES!

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  • Jeremy Cohen July 18, 2012 at 10:14 am

    This makes me feel very sad. I cannot imagine any other situation where you could seriously hurt another person (even “accidentally”) and have no accountability. I personally don’t care if she was distracted, the car was malfunctioning, the sun was in her eyes, or she just didn’t turn the wheel correctly–she hit a person and there should be a consequence for that. My only hope is that if the criminal charge does not get bumped up, the victim at least has her day in civil court and doesn’t get stuck with big medical bills, loss of income, etc.
    I hate the idea of “suing” everybody, but if the criminal system is going to consistently fail us, we are left with few other options.

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  • Brian Johnson July 18, 2012 at 10:32 am

    It comes down to education again. Do the police know about VRU so they can use it properly? Do drives know about it so they can watch how they drive? Nothing I’ve seen in driver education and testing makes it clear that driving a car means staying in control of a massive vehicle capable of much destruction, even at “low” speeds.

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    • Erik G. July 18, 2012 at 11:08 am

      And it is related, I’m afraid, to the fact that increasingly Law Enforcement ranks are made up of persons from rural areas, who, regardless of where they work, live in rural or at the “densest”, exurban areas, and who have little or no experience in living anything but an auto-dependent lifestyle.

      Throw in an over-extended tour in a city in Iraq or Afghanistan (thanks Dubya!) during their years in the military (Police emplyment schemes give lots of extra credit for having been in the military) and you have a biased anti-urban individual ready-made.

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    • El Biciclero July 18, 2012 at 1:16 pm

      “Nothing I’ve seen in driver education and testing makes it clear that driving a car means staying in control of a massive vehicle capable of much destruction, even at ‘low’ speeds.”

      Biggest problem right here. Largely, drivers have no idea what they are doing, neither from the standpoint of physics nor from the perspective of competence.

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  • Joe July 18, 2012 at 10:47 am

    This might be a bit off topic but hey its open forum :) being a daddy
    never take my life to lightly, always kiss the kids and wife along with
    never living with regrets. We need to start respecting other modes of transport. *I’m in full control of my bike BTW *

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  • Pete July 18, 2012 at 11:38 am

    In further comment about application of the VRU law, I don’t agree with Lt. Hastings on the basis that the law was intended to be invoked in this very situation. Regarding the comment about lawyers versus police above, I believe it’s the officer’s duty to invoke the law and let the DA and Judge and Grand Jury refine what’s applicable. Further, unless the law has the chance to be applied and fail, it will not be able to be refined by legislators to be more effective in the goals it was meant to achieve. We’ve seen this in the iterations of the Oregon “crosswalk law” which first had (confused) drivers stopping for the entire duration of a pedestrian’s traversal, then later had to clear them by 6′.

    And still thinking of Christeen and pulling for a strong recovery…

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  • Lois July 18, 2012 at 12:01 pm

    As suggested, I sent a note to the Clatsop Co DA as below:

    I am not familiar with this crash.
    We rely on police agencies, like OSP, to forward us charges.
    As I understand this law it is a violation, NOT a crime and if so the DA’s office would not be involved unless a lawyer represented the defendant.
    Mere “carelessness” that results in injury does not equal a criminal charge but I or one of my deputies would need to review the report from the police.

    Joshua Marquis
    District Attorney
    ________________________________________
    From: Lois Moss
    Sent: Wednesday, July 18, 2012 9:43 AM
    To: Josh Marquis
    Subject: VRU

    Hello Mr. Marquis,

    As you are probably aware, many citizens are currently questioning why the crash caused by Wanda Cortese on July 8 has not triggered a charge under the Vulnerable Roadway User law. Ms. Cortese severely injured and nearly killed an innocent person when she drove her motor vehicle into Christeen Osborn. Many citizen comments can be read at the link below. Because this blog is read by people all over the world, the comments listed are certainly only a small fraction of people who are following this case:

    http://bikeportland.org/2012/07/17/should-hwy-101-collision-have-trigged-vulnerable-roadway-users-law-74755?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+BikePortland+%28BikePortland.org%29

    Please review the details of this crash and do the right thing according to the law.

    Thank you and regards,
    Lois Moss

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    • Lois July 18, 2012 at 8:27 pm

      I received a second reply from Mr. Marquis this afternoon:

      There is a possible crime and we will evaluate it as such.

      Joshua Marquis
      District Attorney

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      • JRB July 19, 2012 at 4:09 pm

        Thanks for sharing Lois, I haven’t gotten such a reply. It seems that he has done enough investigating to decide this is something his office should be reviewing. I will write him now quoting his email to you, thanking him for looking into this, and asking to be informed of any decisions made.

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      • 9watts August 24, 2012 at 8:29 am

        Lois,
        I’m curious if you’ve heard anything more from Joshua K Marquis? I sent him a letter as well but have not received any response.

        I get the impression that your letter to him represented at least as much as Travel Oregon has done to get to the bottom of this, if not more. Thank you for taking the initiative.
        http://bikeportland.org/2012/08/22/oregons-scenic-bikeways-make-it-big-with-nyc-times-square-ad-76370#comment-3168407

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  • Hermes July 18, 2012 at 4:10 pm

    As a lifelong daily cyclist, I get discouraged by this and wonder if I should just give up cycling and drive a car everywhere. Neither the law nor its enforcers protect me, nor do drivers have any legal incentives to avoid running me down. Will Portland’s Bike Share program warn visitors who use the bikes that if they get hit, then it’s just too bad? Why the hell don’t our politicians and bike lobbyists (BTA) enact laws with teeth? Why aren’t all lives treated as equal and all road users equal under the law? Some can get away with killing and maiming.

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    • Pete July 19, 2012 at 10:01 am

      As you know by riding daily it’s really not as bad as these statistically small episodes make you think – don’t be sucked in. It’s a fine balance between fighting for our rights on one front and enjoying the ride on the other. If you give up you will be doing cyclists (like Christeen) the biggest disservice – reducing our visible numbers. I’m more encouraged today after reading Lois posting a second response from the DA’s office. (And would love to hear great news about Christeen soon!).

      My buddy went through a ‘crisis of faith’ a few years ago when his office (which actually has bike lockers in the parking lot) banned the wearing of spandex (the showers are deep inside so he and one other commuter walked through daily and the receptionist turned it into a big stink). The memos were sent to he and the other commuter – not distributed to the entire office staff – so that was mistake number one. I showed up on his doorstep with a muumuu and shower cap and dared them to traverse the front lobby that way. He took the bait! Long story short bike commuting is now actively encouraged in his office and not just tolerated (or targeted).

      Keep the faith! :)

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  • Joe July 18, 2012 at 4:47 pm

    Hermes; fight the good fight man, I know somedays I just get let down
    by the madness but see light at the end of the tunnel. I too have been life long cyclist since age 5. lost friends and almost lost my life many times, but as I type this something out there needs me to never stop riding.
    *** just a fact I think cars really change a person!*** and not for good

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  • Kate July 18, 2012 at 9:12 pm

    Someone please correct me if I’m wrong or if I missed something, above: but with any kind of car accident involving any kind of victim (pedestrian, cyclist, rollerblader, other car occupant,etc), isn’t there automatically a higher charge/fine/punishment, etc?

    If I drift over into the lane in my car and an officer behind me sees that, he can stop me and ticket me, just like she/he can do if I roll through a stop sign or drive above speed limit. It’s de facto careless driving behavior that needs to be discouraged by law and cited when observed, because of their potential to harm people.

    So: if any of those careless behaviors actually harms another person, doesn’t that +automatically+ ratchet it up a bit?

    I’m not saying there is no distinction with intent. If Ms. Cortese was doing something at the time she really knew she shouldn’t have been doing, like texting or driving drunk, then that is different than if she just got the sun in her eyes for a moment and momentarily lost control.

    Either way, it was an accident, and I’m sure Ms. Cortese feels horrible. But still: she was driving carelessly, and she hurt someone. She may not have meant to or been intentionally careless but the law should reflect the fact that careless driving involving a victim is always worse and therefore more punishable than just careless driving. Drivers need to know (and I include myself here) *why* careless acts like veering into a lane or running a stop sign or driving too fast are ticketable….because they can cause harm. When harm happens, the stakes should be much higher. When you drive around humans, you need to be more careful.

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    • wsbob July 19, 2012 at 9:44 am

      “…she was driving carelessly…” Kate

      It’s not known that she was driving carelessly. All the public knows from news reports is that the vehicle left the main lane of the road and collided with someone on a bike, but not ‘why’.

      To the public, there has been no release of details from the interview I expect would have taken place between members of the OSP and the driver of the vehicle. According to OSP Lieutenant and Public Information Officer Gregg Hastings, quoted in this bikeportland story:

      “…Unless there is a change in the trooper’s decision based upon available information and evidence related to the crash investigation, the original cited charge will remain in effect and move forward in court.” OSP Hastings email to bikeportland

      In court, more details about the person driving will likely be presented. Those details may allow fair minded, reasoned members of the public to better determine for themselves whether or not the driver really was careless, or whether other factors perhaps beyond the control of the driver, brought this collision to be.

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      • are July 19, 2012 at 10:28 am

        you have raised this argument repeatedly on this thread. do you even read the responses? the statute does not require an answer to the question “why.” we are not talking about a criminal statute here.

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        • wsbob July 19, 2012 at 11:36 am

          ‘Innocent Until Proven Guilty’ Even minor violations require that burden of proof. If someone is to be accused and judged guilty of something, the proof had better be there. Even a citation for running a red light gets that.

          Here, a number of people are wanting to conclude the person driving and colliding with someone on a bike was due to her being careless, when they have to date, virtually no proof that she was careless. It’s just that 811.135 has some flimsy criteria for ‘careless’, that they’re readily jumping to, draw a conclusion that she was careless. No proof as of yet.

          In this incident, I think the ‘why’ of how the car came to leave the main lane of the road and move to the shoulder, then hitting a person on a bike, is central to the question of whether or not carelessness on the part of the driver of the vehicle was actually the reason for the collision. You apparently don’t agree…and that’s just fine. Others besides myself don’t agree with you either.

          Hopefully, we’ll be kept up to date on what goes on in court. If questions and answers about whether or not the driver was actually careless don’t come out in court for the ‘Failure to drive within a lane’ charge, they may come out later. Someone’s going to have to cover the

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          • are July 19, 2012 at 12:19 pm

            again. and this really is the last time. the burden of proof here is that the car went onto the shoulder and hit a cyclist. period. yes, even those facts have not yet been established in traffic court. but when ms cortese gets to court on the pending charge of improper lane usage, the question why it happened will not be on the table. the highway patrol will be required to prove that a vehicle she was operating (and please, bob, let’s not continue to quibble with “operating”) left the travel lane. period. not what she was thinking or where she was looking.

            the subject under discussion on this thread is why, given that the only further item that would require proof of a separate charge under the vulnerable user law would be that the vehicle then struck a cyclist, why that was not also charged. period. the end.

            the answer, incidentally, appears to be that the highway patrol has been insufficiently schooled on the subject.

            jonathan, you will perhaps be pleased to learn that i will no longer be posting to this thread.

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          • Alan 1.0 July 19, 2012 at 12:28 pm

            A citation must be issued before a court action. Presumption of innocence happens in the court.

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          • El Biciclero July 19, 2012 at 4:48 pm

            “Innocent until proven guilty”

            Totally–although one cannot be proven guilty of something they aren’t charged with (cited for) in the first place. Yeah, why don’t we all wait for the court to decide…except we can’t because the OSP already decided! In their opinion, she’s “not guilty”. How is that any better than folks here calling for a citation–not a guilty verdict, just a citation–that appears to be obviously applicable. If there is some reason why Ms. Cortese is not guilty of driving carelessly, let that come out in a courtroom and let a judge decide, not OSP.

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            • wsbob July 19, 2012 at 6:56 pm

              “…Totally–although one cannot be proven guilty of something they aren’t charged with (cited for) in the first place. …” El Biciclero

              Wasn’t charged, because the responding officer, and whoever else from the OSP that investigated this collision, apparently felt they had no grounds for the 811.135 ‘Careless Driving’ citation( not ‘vulnerable road user law, as we’ve all been calling it; 801.608 defines VRU.).

              If inquiries made by the responding officer and others, of the person driving as to why they left the lane and hit someone on a bike do not come to light in the pending charge, there’s probably another official way to learn whether the driver was or wasn’t careless in driving.

              My impression, is that much of the point of the effort to bring ‘vulnerable road user’ defined in (801.608) into 811.135, was to address problems posed by careless drivers to vulnerable road users.

              http://www.oregonlaws.org/ors/801.608

              That’s one of the reasons why it’s important to know whether a person behind the wheel of a motor vehicle that’s collided with somebody or something, actually is a careless driver, or whether there was some other reason the collision occurred. It doesn’t do much good to subject a person that’s been involved in a collision, to the penalties and remedies listed in 811.135, if for some reason despite some people’s thoughts to the contrary, the facts point out that the person involved in the collision wasn’t driving carelessly.

              Whether or not the reasons for the collision related to condition of person driving, activity prior to collision, etc., come out in the court hearing for the ‘Failure to drive within a lane’ citation, I think many of us would benefit from learning why, if the reason wasn’t outright carelessness arising from distraction or known health issues…the collision occurred. I want to know what the police officers and investigators asked Ms Cortese about the collision, and what her answers were.

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              • 9watts July 19, 2012 at 7:16 pm

                “I want to know what the police officers and investigators asked Ms Cortese about the collision, and what her answers were.”

                I don’t particularly.
                To me this has already become a charade, a farce, and all too familiar bit of theater.

                cop: “Why did you drive off the road?”
                wanda: “I drove off the road?”
                cop: “Well, you drifted over the fog line.”
                wanda: “The sun was in my eyes.”
                cop: “Thanks. Those are all my questions.”

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              • wsbob July 20, 2012 at 12:02 am

                I missed the update on Lois Moss’s correspondence with Clatsop County DA Joshua Marquis, posted yesterday evening:

                “There is a possible crime and we will evaluate it as such.

                Joshua Marquis
                District Attorney ”

                http://bikeportland.org/2012/07/17/should-hwy-101-collision-have-trigged-vulnerable-roadway-users-law-74755#comment-3075959

                Lois…thanks very much for making the effort to contact Mr. Marquis! And for being successful at getting a response from the DA telling you his office will be considering whether there was commission of a crime in this collision.

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              • El Biciclero July 20, 2012 at 10:52 am

                “Wasn’t charged, because the responding officer, and whoever else from the OSP that investigated this collision, apparently felt they had no grounds for the 811.135 ‘Careless Driving’ citation”

                This is your assumption–that responding officers had complete awareness of all the applicable citations and their likely consequences, and chose to go with a “lesser” citation of failure to maintain a lane because, golly, there’s just not enough proof here to show true carelessness in its purest form.

                For all we know, this citation was just the most obvious to the responding trooper, who was not cognizant of the careless driving implications in this case (where a VRU was injured). Or, he merely chose not to cite “to the fullest extent of the law” out of sympathy for the driver rather than due to some mysterious “exculpatory” evidence.

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                • wsbob July 20, 2012 at 8:00 pm

                  Not an assumption. A theory. A possible reason the responding officer didn’t write out an 811.135

                  Make fun of the cops if you want…you seem to enjoy it…but ‘golly’ you just weren’t there at the collision scene yourself, investigating, so except for your own opinion and theories, you really have very little grounds to claim they didn’t write out the correct citation.

                  It’s important to find out why this collision occurred. Far more important that having a citation written out for a reason that may not have had anything to do with why the collision actually occurred.

                  It would be interesting to know what all brought Clatsop County DA Marquis to learn about at this collision, and whether more than the ‘Failure to drive within a lane’ citation is called for, but at any rate, apparently that’s what’s happening. Eventually, we may find out just what was going on with the driver of the vehicle.

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      • are July 19, 2012 at 10:30 am

        on the existing citation, improper lane usage, nothing will happen in court to illuminate the question. improper lane usage is also a violation, for which state of mind is not an issue.

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        • Alan 1.0 July 19, 2012 at 12:24 pm

          I would be surprised if Ms. Cortese does not simply pay the $260 fine and forfeit a court appearance.

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  • steve scarich July 19, 2012 at 9:07 am

    Maybe I’m being a bit simplistic, but it seems to me that ‘careless’ driving is a matter of degree. Drifting one foot out of your lane, and to the edge of the shoulder is probably not careless, but drifting six feet and well into the shoulder is careless. I haven’t read all the details of this case, but it seems to be that the police officer should just gather as much information/witness testimony as he/she can, and then let the DA decide if the action is ‘careless’.

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  • Dan July 19, 2012 at 9:13 am

    I would be curious to ask Gregg Hastings how the OSP proceeds when a driver fails to change lanes to travel around a police car stopped on the shoulder and strikes a policeman on the shoulder. Do they assess the driver’s state of mind and reason for failing to change lanes before pressing charges?

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    • El Biciclero July 19, 2012 at 9:41 am

      May we never find out–but it is an interesting question.

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  • Seth Alford July 19, 2012 at 12:30 pm

    Could the BTA sue the OSP to enforce the las as written, not as OSP has misinterpreted it?

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  • esther c July 19, 2012 at 12:38 pm

    The fact that she didn’t maintain her lane and struck a cyclist is pretty much prima facia evidence that she was operating her vehicle “in a manner that endangers or would be likely to endanger any person or property.”

    The vulnerable users law defines what the careless behavior is. “operating a vehicle in a manner that endangers or would like endanger any person or property.”

    She ran over someone on the shoulder. She met the definition as the vulnerable users law defines it.

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  • esther c July 19, 2012 at 12:42 pm

    http://www.oregonlaws.org/ors/811.135

    (1) A person commits the offense of careless driving if the person drives any vehicle upon a highway or other premises described in this section in a manner that endangers or would be likely to endanger any person or property.

    She endangered someone. They are in critical condition in a hospital. There is no disputing this or getting around it.

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  • Opus the Poet July 19, 2012 at 7:29 pm

    Excuse me for being obtuse here, but I think the only reason the state of the driver’s mind would enter in to whether to charge under the VRU would be intended or unintended collisions. then it becomes very simple: Intended collisions are assault with a deadly weapon or higher, unintended collisions are violations of the VRU. If this was not a violation of the VRU law then it’s assault or worse.

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  • esther c July 19, 2012 at 8:13 pm

    It was either careless or reckless unless there was some medical condition like a seizure or fainting. then there would be no charge at all.

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  • Ajax July 19, 2012 at 9:03 pm

    I wonder what the charges would have been if the victim had been a relative or friend of the officer. I also believe that despite the flagrant failure of the officer to enforce the law, the victim will still have the option of suing the driver, and the state attorney general and/or the county prosecutor have the option of prosecuting the driver.

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  • Seth Alford July 21, 2012 at 12:42 pm

    Below is the text of the snail mail letter I am about to send to Mr. Marquis. It’s a little long, and maybe too repetitive. Feel free to edit it and use it as a basis for your own letter to Mr. Marquis. (On re-reading it, I don’t like that it says the mini-van crashed into the bicycle as if no human’s were involved. Maybe you can come up with better phrasing.)

    JRB, above, says what I have also heard, “In the hierarchy of advocacy, a written letter is considered to be the most effective.” I have also heard that individually written letters are the best, followed by edited versions of a form letter, followed by direct copies of a form letter. Worst is no letter, email, phone call, or contact at all; they are not mind readers.

    Letter text follows:

    Joshua K Marquis
    Clatsop County District Attorney’s Office
    PO Box 149
    Astoria, OR 97103

    Subject: Ms. Wanda Cortese’s careless driving

    Dear Mr. Marquis,

    Thank you for investigating the tragic collision between Wanda Cortese’s minivan and Dr. Christeen Osborn’s bicycle on July 8th as a possible crime. I write this letter in support of that investigation.

    As you know, the collision resulted in serious injury for Dr. Osborn. Last I heard, she is still in the hospital. Ms. Cortese received a $260 traffic ticket.

    This is an injustice that you are in a position to correct.

    According to media reports (see e.g., http://bikeportland.org/2012/07/17/should-hwy-101-collision-have-trigged-vulnerable-roadway-users-law-74755 and http://bikeportland.org/2012/07/08/collision-on-hwy-101-south-of-cannon-beach-results-in-critical-injury-74403 ) Ms. Cortese drove her minivan onto the shoulder, striking Dr. Osburn. Note, please, the way I phrase that. “Ms. Cortese drove her minivan.” The OSP is quoted as saying “The OSP says the woman driving the van ‘drifted onto the shoulder and struck the woman’s bicycle from behind.’”

    “Drifted?” Ms. Cortese had a responsibility to remain in control of her motor vehicle. “Control” means not “drifting” over the road surface, striking and injuring other road users.

    That the OSP has so far refused to charge Ms. Cortese under the more stringent careless driving statute, ORS 811.135, shows that the OSP does not understand the statute. According to the bikeportland story, Lt. Hastings of the OSP wrote in an email to Jonathan Maus of bikeportland:

    “The Careless Driving statute is not a catch-all for any situation involving a bicycle-involved traffic crash. The trooper’s decision to cite is based upon whether there is enough evidence to prove that the driver was operating the vehicle in a manner that endangers or would be likely to endanger any person or property. The fact that someone was injured is not necessarily enough to prove the vehicle was being operated carelessly or recklessly. Unless there is a change in the trooper’s decision based upon available information and evidence related to the crash investigation, the original cited charge will remain in effect and move forward in court.”

    Lt. Hastings reads more into the statute than is there, and gives Ms. Cortese more latitude than she deserves. That she drove her minivan out of her lane, striking another person, is sufficient to show that Ms. Cortese was driving carelessly.

    Even 811.135 carries insufficient penalties for Ms. Cortese, in my opinion. 811.135 merely says that she must perform 100 to 200 hours of community service, and take a driver safety course. If she does not do those things, she then may face a penalty of up to $12500. Ms. Cortese put someone in the hospital. At the very least, she needs to be in jail for a time. I am aware that Ms. Cortese is 78 years old. That is not an excuse. If anything, that’s another reason for a stricter penalty than a $260 traffic ticket. Someone that age should know that irresponsible behavior has negative consequences.

    As a bicyclist on Oregon’s roads, I am very disappointed that OSP has treated this matter so lightly. I wonder if the OSP would be so lenient in their charging of Ms. Cortese if she had struck an OSP officer issuing a traffic citation on the side of the road.

    Again, fortunately, your office is in a position to rectify this injustice. I call upon you to at least charge Ms. Cortese under 811.135.

    Sincerely,….

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