BikePortland

Expert witness backfires on DA in bike lane case


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

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

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

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

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

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

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

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

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

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

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

Ginsberg then cross-examined Geller.

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

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

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

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

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

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

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

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

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

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

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