This week we caught up with Gary Harty, member of TheCyclist-Lawyer.com cycling team and 20+ year cyclist, to get his thoughts and observations regarding a traffic case trial he observed on November 20, 2013. The trial involved a cyclist cited with CRS 42-4-1412(5) "bicycle rider failed to ride on right of lane when being over taken." Megan Hottman represented the defendant/cyclist against this charge and obtained a successful outcome for her client - namely, the judge did not find the Jeffco District Attorney met their burden of proof, nor did he find that the statute as written requires a cyclist who has "taken the lane" to move to the right when a car attempts to pass him. Hottman tells us that the cyclist in this case was struck by the vehicle attempting the pass, and it resulted in significant injuries including a shattered pelvis. He was handed the citation at the ER while he was being prepped for emergent airlift helicopter transport. Hottman said, "the Trooper in this case, as well as the Jeffco DAs, firmly believed that the cyclist was in the wrong for riding out in the lane instead of riding the white line." We understand that this particular 2-lane road is quite narrow, has no shoulder, often has gravel stretching out a foot into the lane on the right side, and also requires passage over a drainage grate and railroad tracks. Hottman argued that due to the narrow lane width and the hazards present, this is a perfect example of when a cyclist can-and should- take the entire lane to ensure safe passage.
By Gary Harty
As an adult cyclist, a period now exceeding 40 years, I have been concerned about having my rightful place on the roadways. I have cheered for every piece of legislation that has supported my rights as a legitimate road user and has required my responsibility to use the roads appropriately. Recent legislation in Colorado, supported and fought for by organizations like Bicycle Colorado, have been positive steps in the right direction: the three foot passing rule, the riding only as far right as it is safe to do so, use of the full lane by cyclists when it is not safe for overtaking vehicles to pass being examples of this legislation. So when I first got wind on some cyclists being issued citations when struck by cars passing, to say I was alarmed and upset would be a major understatement. I had the opportunity to witness one such trial this past week in the Jefferson County Courts. The cyclist had pleaded not guilty and was going to court in an attempt to have the citation overturned. In my mind, a lot was at stake based on the outcome of this trial, not just for this individual cyclist but for all cyclists.
Every day, I witness atrocious behavior on the part of the motoring public. It starts with the local news when traffic reporters such as Amelia Earhart go through the daily litany of crashes, overturned vehicles, road closures, and traffic slowdowns. I don’t consider driving an automobile to be that difficult. And it is not difficult provided you don’t speed, provided you keep a safe following distance, provided you drive defensively and alertly anticipating possible hazards. This assumes you will engage in the task at hand and not a myriad of other tasks like texting, talking on the phone, or reading magazines while driving. I truly believe our traffic reporters should be celebrating the number of days and weeks that we as a society go accident free as opposed to chronicling the number of accidents that occur every day. Giving the number of accidents occurring, you would have to assume that driving a car required the same skill level it takes to be a major league baseball player. A successful major league player will fail in his attempts to catch up to a 98 mph fastball or be fooled by an 80 mph curve ball 7.5 times out of 10. A superstar will fail 7 times out of 10. And I am sorry; driving a car just doesn’t rise to that level of difficulty.
Defensive driving that was so heavily emphasized when I was going through the rite of passage at the age of 16 has been replaced by extremely aggressive driving. Sit at any intersection and see how often motorists gun the accelerator to beat the red light. Signal a turn to change lanes and see how often a motorist will suddenly speed up to cut you off. Ask yourself why motorist interpret our speed limit signs as an absolute minimum speed to be maintained or exceeded regardless of road or traffic conditions. Please explain to me why an extremely vitriolic group of motorists insist that cyclists have no right to use the road. Please explain why they repeat the lie that cyclist do not pay road taxes. Defensive driving would demand that a motorist would slow down before attempting to pass a cyclist, and yet I often witness just the opposite, where a motorist will speed up into oncoming traffic as opposed to slowing down and passing safely. I have news for this group of impatient motorists. If you remove every cyclist from the roads starting tomorrow, the problems created by the motoring public would continue unabated. Amelia Earhart and her fellow traffic reports would continue to document our failures as drivers exactly as they do now. And we would continue to have the same number of hit and run accidents that have become almost weekly occurrences. And we would continue to have congested roadways, and road rage, and pollution, and road construction trying in vain to keep pace with repairs and new roadway construction.
These thoughts and a gnawing fear were in my mind of what would happen if this cyclist were to lose his court case as the trial date approached. Would the Judge interpret the law correctly? Would the facts be presented in support of the law? You have to believe that a Judge will leave any possible bias behind when he enters the court room. But would there be pressure to support the hard working law enforcement officer and the overworked prosecuting attorneys from the DA’s office? As I listened to the officer’s testimony, it was disheartening to hear his interpretation of the law. I never doubted his work ethics or his diligence, but his interpretation of what constitutes safe cycling practice, what constitutes safe passing circumstances, and what constitutes good defensive driving habits was most discouraging. And as I sat through the continuing examinations and cross examinations, I thought of the “common sense” notions that I believed should be the foundation of law. As a new driver, I learned from Denver Police Officers that if a driver ran into the car in front of them there would be a presumption of guilt found upon the trailing driver. As a downhill skier, there was an expectation that the skier further up the hill had an absolute duty and responsibility to avoid the skier further down the slope. It didn’t matter if the skier was skiing slowly utilizing the “snow plow”, or weaving back and forth traversing the slope, or was hidden on the other side of a hill or behind a mogul. The skier responsibility code demanded the faster approaching skier to be in control and avoid accidents. I asked myself, should it be any different for a motorist approaching a cyclist in the same lane of traffic?
I was so pleased that, as the attorneys were completing their closing statements, the Judge asked some very pointed questions. His interrogation demonstrated that he had listened very carefully to the facts that were presented and supported by witness statements and the accident investigation. He was discarding facts that were not relevant. Those questions also demonstrated that he had looked carefully at the conflicting portions of the law presented in the briefs and compared them to the undisputed testimony regarding the portion of the roadway involved in the accident. In the end during his summation, he found that the People had not met their burden of proof in order to uphold a guilty verdict in this case. WOW!! VICTORY !! I felt wonderful relief with this outcome and all I could think is this cyclist deserved incredible credit for having the courage to challenge this citation knowing that to lose would be much more expensive than to just pay the original fine and accept the guilty verdict. Kudos also must go to his attorney for her dedication and zealous representation of cyclists and cyclists’ rights. The battle continues for cyclists to safely use the roadways until a more enlightened way of living becomes the norm and I will be forever thankful for that commitment.