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Jonathan Maus
04-21-2006, 10:11 AM
I'm posting this for a friend, Allan Folz:

Back in February, riding my bike home from work, I was struck by a
motorist while in a marked crosswalk. I was riding on the left-hand
sidewalk. The motorist was stopped at a stop sign and waiting to turn
right onto the road which I was riding next to. The motorist told the
responding officer as she came to the stop sign she looked right didn't
see anyone on the sidewalk then looked left and saw a UPS truck that was
turning right itself (entering the street she was exiting). She waited
for the UPS truck to complete its turn so she could be sure there was no
traffic behind it. Once she saw it was clear she started her turn. A
witness to the accident told the officer I was "bombing" down the
sidewalk and he saw me get hit. I told the officer I slowed down to a
walking speed as I approached the crosswalk and saw that she was waiting
on this UPS truck to turn; therefore not likely looking my way. After
the UPS truck had turned, she still hadn't moved so I assumed she was
waiting on me. I then rode into the crosswalk at a walking pace. As I
got about halfway through the lane, the motorist started going and drove
right into me. She clipped the back of my bike with the corner of her
driver's side bumper.

At this point I figured it was a clear-cut case of driver negligence.
The driver hit a sidewalk-user in a marked and highly visible crosswalk.
She admitted to be looking left while turning right. The witness'
statement about me bombing down the sidewalk was largely immaterial
since my speed entering the crosswalk was what matters according to the
ORS statute. Unfortunately, and as I would experience repeatedly, in
Beaverton the attitude is bikes-don't-belong. I was cited under
ORS814.040 for pedestrian failure to yield to motorist. The officer told
me I was going too fast on the sidewalk, so it was my fault. I argued
with her a little bit at the scene, but I know once a citation is
written they almost never take it back. I didn't spend too much time or
effort arguing because anything I said would just be giving away my
planned defense at court.

So finally, last night, I had my day in court. I had talked to Mark
Ginsberg, a Portland lawyer that specializes in cyclist' rights, prior
to the trial. He gave me a rough idea of how to plan my defense and what
to expect at the trial. Unfortunately the trial was pretty boring (even
for me) and I don't any Perry Mason moments to share. I did get in two
objections: once for the officer saying I was going against the flow of
traffic on the sidewalk, another for the witness saying I was going the
wrong way in the crosswalk. The one against the officer was overruled,
while the one against the witness was... SUSTAINED, baby! I think the
reasons the second one was sustained while not the first were the
context was slightly different between the two and it was a witness, not
a cop whose statements I was objecting to. Be fore-warned, there is a
decided pecking order in court. First, the judge is infallible. Next
comes lawyers (the judge was once a lawyer himself), then police, then
other expert witnesses. Last are the village folk. If you are reading
this for advice be assured you are village folk. Be careful not to upset
this order. Use utmost respect when talking to those above you in the
pecking order. Never question or disagree with the judge, he is infallible.

As for the events of the trial, the officer called the motorist first.
The motorist testified pretty much as she did the day of the crash.
Under my cross-examination she admitted she never saw me on the
sidewalk, enter the crosswalk, or in the crosswalk until the moment of
collision. She had absolutely no idea how fast I was going. I tried, but
fumbled a little bit in my choice and manner of questions to get her to
explicitly state she drove into me while turning right and looking left.
Next the officer called the witness. I had no idea how he would testify
or how much he really saw. From his statement on the day of the
accident, it seemed like he saw the whole thing. At trial he testified
only that he saw me flying through the air feet over my head and landing
on my shoulder on the pavement. He said based on the distance from the
vehicle that I landed I must have been going fast. When I cross-examined
him I asked him if he saw me on the sidewalk, entering the crosswalk, or
in the crosswalk at anytime. He said he hadn't see me anytime prior to
me flying through the air. I then asked him whether he saw me slide,
skid, or roll after hitting the ground? [No] Whether he saw any torn
clothing indicating I hit the pavement at a high speed? [No] Whether I
had any bleeding on my hands, shoulder, knees, or legs? [No] I then
asked him how without any of those things he thought I was going at a
high speed. He insisted based on my trajectory and the distance into the
intersection that I landed I had to have been going fast. I hadn't
prepared to ask him questions on trajectory alone and his ability to
judge such. I should have thought of that and planned accordingly
though, mea culpa. Finally it was my turn to testify. I testified as I
did on the day of the accident. After testifying the officer asked me a
few fairly irrelevant questions. Actually her questions only underscored
her bias that bikes-don't-belong.

The verdict was not guilty. I got a lecture from the judge amounting to:
'by the letter of the law you are not guilty, but you should know
bikes-don't-belong.' After the trial the other parties left together and
a few moments ahead of me. Just as I entered the hall outside the
courtroom I heard the officer say to the motorist, "... it was basically
a mis-application of the statute." I was floored. I obviously do not
have the context of the conversation, but I am pretty confident the cop
was *again* telling the motorist it wasn't her fault. The opinion
clearly was bikes-don't-belong, bikes should stay out of the way of
cars. I wonder how they would have acted if instead of a cyclist it was
a mother with one of those jogging strollers 'bombing' through the
crosswalk. I am pretty certain they would all have a different outlook.
Everyone in the courtroom felt I should have completely stopped my bike
and waited for the intersection to clear of all motorists before I
entered the crosswalk. This is absolutely not the law, but it is their
wish and opinion of how things should be.

So after all this, what are the morals? 1) When going to trial prepare
many times more than you think you need to. Have a script of questions
you want to ask written out ahead of time. Try to anticipate all
possible statements the witnesses may make and have questions scripted
to follow-up on any of those points. 2) Be polite. I thought I was
polite, yet not yielding or deferential to the cop or witnesses. The
judge picked up on my unyielding demeanor, and in his lecture more or
less told me I was a rude person. If I had actually allowed myself to be
rude (easy to do when faced with a bunch of motorists acting like
bikes-don't-belong) in addition to unyielding I'm sure the judge would
have been even more disinclined to believe my side of the story. 3)
Recognize many police officers are ignorant or outright wrong concerning
statutes that apply to bicyclists. They make many mistakes and errors.
Don't bother to argue or attempt to educate them. Save it for the trial.
At trial, be an expert on the law yourself and be ready to object to any
factual mistakes an officer makes. 4) You are guilty until proven
innocent, so you must prove your innocence. This is always the case in
traffic court, but as a cyclist it applies doubly so. That means you
have to be all the more prepared and ready for every eventuality.
Defending oneself in traffic court is a tough job. At trial when nerves
are tingling and adrenaline is rushing, you won't be thinking clearly.
You need to have planned and rehearsed your cross-examination questions
so they are down cold. They should be second nature. You should be able
to quote them as easily as dialog from your favorite movie.

Do all those things, and you can hope to defend yourself in court
against car culture.

organic brian
04-24-2006, 05:24 PM
Allan, that's a bummer that you had to defend yourself in bike-hostile Beavertron. I called the Beaverton police administration number just now and left a message asking what can be done to educate their officers on the statutes regarding cycling. Maybe some cyclists with easy access to a fax can send them a copy of the bike/ped statutes document. There is also an email address for the Beaverton Police.

Beaverton Police administration:
(503) 526-2264
(503) 526-2541 (fax)

Beaverton Police email:
beavertonpolice@ci.beaverton.or.us

Contact info galore:
http://www.beavertonpolice.org/about/contacts.html

The ODOT bike/ped statutes summary for Oregon:
http://www.oregon.gov/ODOT/HWY/BIKEPED/docs/bike-ped_statutes.pdf