FROM:  STEVE MAGAS, The Bike Lawyer

TASERED CYCLIST SETTLES LAWSUIT

On August 19, 2008, bicyclist Anthony Patrick, from Huntington, West Virginia, was Tasered by Lawrence County, Ohio Deputy Charles Hammonds and Chesapeake Police Department Dennis Gibson.  Patrick was riding his bicycle with another rider when Deputy Hammonds told Patrick to get off the road.  Patrick told Hammonds he had as much right to be on the road as the deputy.  A series of events unfolded thereafter which ended with Patrick be Tasered, arrested and charged with a series of “crimes” including “Riding a Bicycle on the Roadway,” resisting arrest, failing to obey a lawful order and other crimes.

Patrick retained a criminal lawyer and fought the criminal charges, filing a Motion to Dismiss.  After a hearing at which Deputy Hammonds was the only witness, the court issued a written opinion holding that the Deputy’s order to stop was “unlawful” as Patrick had done nothing wrong.  The court pointed out that cyclists have the right to use the roads and are permitted by law to ride side by side.  While the court stated that cyclists should act courteously towards other traffic, cyclists riding two abreast do not legally have to move to a single file line or otherwise give way to motorized traffic and it was improper for Deputy Hammonds to order Patrick off the road.  The Court also reaffirmed the landmark holding of Trotwood v. Selz, finding that a bicycle being operated at a reasonable speed for a bicycle is not “impeding traffic.”  After the Court’s ruling in Patrick’s favor, the Prosecuting Attorney dismissed all charges against Patrick.

Steve Magas, The Bike Lawyer, represented Tony Patrick in a civil rights lawsuit filed against Deputy Hammonds, Officer Gibson, the Sheriff, the Police Chief and the City of Chesapeake in the United States District Court, Southern District of Ohio, Western Division.  This case, Patrick v. Lawless, et al., included claims of excessive force, negligence, assault and battery, false arrest and false imprisonment, seeking compensatory and punitive damages.  Defendants denied liability and discovery proceeded, including the taking of several key depositions, and it was learned that key evidence – including a videotape from the scene of the Tasering -  had never been provided to Patrick’s criminal or civil lawyers.

All parties reported to the United States Federal District Courthouse in Cincinnati for a Settlement Conference with Judge Barrett on July 1, 2010.  Following several hours of negotiations, a settlement was reached.  While the settlement figure is confidential, Tony Patrick was very pleased with the outcome and feels justice was done.

Well, they don’t come right out and say that … but… let’s look at the numbers.

First, 716 deaths across the country.  Is that a lot?  Of course – ONE is a lot.  However, compared to the 1005 deaths in 1975, that figure is pretty good.  Further, there are a LOT more cars on the road today than 1975 so we’re seeing significantly fewer deaths [30% fewer] despite significantly higher “traffic density” [i.e., more cars per square inch]

Second, of those 716 deaths, some 40% occur in THREE states.  The Big Three are Florida [125], California [109] and Texas [53].   In Ohio, we had 17 deaths, or 2% of all cycling deaths nationwide.

Third, alcohol impairment was reported in more than ONE THIRD of all cycling fatalities.  By not drinking and riding, your risk of a fatal bike crash goes WAY down.

Further, most [69%] fatal crashes occur in urban, not rural areas.

So, if you get on your bike in Ohio, take some time to enjoy some of the thousands of miles of great rural cycling roads throughout Ohio and don’t have a few drinks along the way your risk of a fatal crash is approaching single digits, I suspect.

ENJOY THE ROADS

Be Careful!

Good Luck and Good Riding!

Steve Magas, The Bike Lawyer

The facts show that an officer gave a ticket to the defendant for going “79 mph” in a 60 mph zone.  He testified that he was trained and tested to guesstimate speed to within “3 or 4 mph” back in the Police Training Academy.  The case is silent on how often he is re-tested, but indicates that he has made “hundreds” of visual estimations since then.  It doesn’t say if his “estimations” were measured against radar.

He “estimated” the defendant’s speed to be 70mph and had a Doppler radar that showed 82!  {So just how good is his estimating ability???}  However, at trial the officer failed to produce his “papers” showing him to be certified in the radar so the conviction was based solely on his testimony and estimate of speed.

The Ohio Supreme Court held that the officer’s visual estimate was sufficient to support the conviction.  The reason?  He passed the OPOTA training course and was “experienced” at estimating speed.

I guess this will save smaller communities a lot of money in purchasing and maintaining radar and laser equipment, eh?

Steve Magas

Let’s Be Careful Out There

PS

You can read the decision here.

==== Here’s the complete decision for your reading pleasure ===

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Barberton v. Jenney, Slip Opinion No. 2010-Ohio-2420.]

NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2010-OHIO-2420

CITY OF BARBERTON, APPELLEE, v. JENNEY, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Barberton v. Jenney, Slip Opinion No. 2010-Ohio-2420.]

A police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21(D) without independent verification of the vehicle’s speed if the officer is trained, certified, and experienced in visually estimating vehicle speed.

(No. 2009-1069 — Submitted February 17, 2010 — Decided June 2, 2010.)

APPEAL from the Court of Appeals for Summit County, No. 24423, 2009-Ohio-1985.

SYLLABUS OF THE COURT

A police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21(D) without independent verification of the vehicle’s speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization that develops and implements training programs to meet the needs of law-enforcement professionals and the communities they serve, and is experienced in visually estimating vehicle speed.

__________________

O’CONNOR, J.

{¶ 1} In this appeal we determine whether a police officer’s unaided visual estimation of a vehicle’s speed, by itself, is sufficient evidence of the vehicle’s speed to support a conviction for speeding in violation of R.C. 4511.21(D). Appellant, Mark Jenney, argues that it is impossible for a police officer to visually estimate the exact speed of a moving object. He asks the court to establish a bright-line rule that an officer’s visual estimation of speed, without other evidence to support it, is insufficient to sustain a conviction for speeding.

{¶ 2} A rational trier of fact could find testimony by a police officer who is trained, certified by the Ohio Peace Officer Training Academy (“OPOTA”) or a similar organization, and experienced in visually estimating vehicle speed, that he estimated a vehicle’s speed to be in excess of the posted limit sufficient evidence to establish a violation of R.C. 4511.21(D) beyond a reasonable doubt. We therefore hold that a police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21(D) without independent verification of the vehicle’s speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization that develops and implements training programs to meet the needs of law-enforcement professionals and the communities they serve, and is experienced in visually estimating vehicle speed.

Relevant Background {¶ 3} On July 3, 2008, Officer Christopher R. Santimarino was in a

marked patrol car running stationary radar at southbound traffic on State Route 21 in Copley Township, Ohio. The posted speed limit in that location is 60 miles per

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hour. Santimarino observed Jenney driving a black SUV in the left lane of Route 21 in moderate to heavy traffic. Santimarino determined that Jenney was traveling faster than the posted speed limit, initiated a traffic stop, and issued Jenney a citation for traveling 79 miles per hour in a 60-mile-per-hour zone in violation of R.C. 4511.21.1

{¶ 4} The case proceeded to trial in the Barberton Municipal Court.

{¶ 5} At trial, Santimarino testified that he had been employed as a patrolman with the Copley Police Department for 13 years. He testified that he was certified by OPOTA and had been working in traffic enforcement since 1995. Santimarino testified that as part of his OPOTA training, he was trained to visually estimate the speed of a vehicle. In order to be certified by OPOTA, Santimarino was required to show that he could visually estimate a vehicle’s speed to within three to four miles per hour of the vehicle’s actual speed, which he did. Further, Santimarino testified that since becoming a police officer in 1995, he had performed hundreds of visual estimations. Santimarino testified that based on his training and experience, he had estimated that Jenney’s vehicle was traveling 70 miles per hour on July 3, 2008.

{¶ 6} Santimarino also testified that in addition to his training and experience in visually estimating vehicle speed, he was trained and certified to use the Python brand Doppler radar unit that he was using on July 3, 2008. Santimarino testified on direct examination that after he visually estimated the speed of Jenney’s vehicle, he observed that the radar unit indicated that Jenney’s

1 In issuing the citation, Santimarino inadvertently failed to check any of the boxes specifying under which subsection Jenney was charged, but the trial court permitted the state to amend the citation to allege that Jenney violated both R.C. 4511.21(A) (operating a motor vehicle at a greater speed than is reasonable and proper under the circumstances) and 4511.21(D)(6) (operating a motor vehicle at a speed exceeding the posted speed limit). On appeal, the Ninth District Court of Appeals affirmed the trial court’s grant of the city’s motion to amend the citation. Barberton v. Jenney, Summit App. No. 24423, 2009-Ohio-1985, 2009 WL 1139347, ¶ 4. We declined to review Jenney’s proposition relating to the amendment. Barberton v. Jenney, 123 Ohio St.3d 1406, 2009-Ohio-5031, 914 N.E.2d 204.

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vehicle was traveling at 82 miles per hour.2 Santimarino could not produce a copy of his radar-training certification when defense counsel requested he do so on the day of trial.

{¶7} Santimarino also testified that Jenney was traveling at an unreasonable speed for the conditions, given the other traffic in close proximity to his vehicle.

{¶8} In light of both his visual estimation and the radar reading, Santimarino initiated a traffic stop and issued Jenney a citation for traveling 79 miles per hour in a 60 mile per hour zone in violation of R.C. 4511.21. Santimarino testified that he reduced the rate of speed to 79 miles per hour to “give [Jenney] a break on the personal appearance in court,” which is required for speeds 20 miles per hour or more over the speed limit.

{¶ 9} At the conclusion of the city’s case, Jenney moved for an acquittal pursuant to Crim.R. 29, arguing that the city had failed to meet its burden of proof. The trial court overruled Jenney’s motion. Jenney then testified that before he was pulled over, he had been traveling in the right lane of traffic, not the left lane as Santimarino had testified, and that he had been traveling at the speed limit, 60 miles per hour.

{¶ 10} The trial judge found Jenney guilty of traveling over the posted speed limit. Based on Santimarino’s visual estimation, which the trial court found to be his “strongest” testimony, the court amended the citation to state that Jenney was traveling 70 miles per hour in a 60-mile-per-hour zone and imposed a $50 fine plus court costs.

{¶ 11} Jenney appealed his conviction to the Ninth District Court of Appeals, arguing that the trial court had erroneously permitted the city to amend the traffic citation and that his conviction was not supported by sufficient

2 Santimarino testified on cross-examination that the radar unit indicated that Jenney’s vehicle was traveling at 83 miles per hour. This difference is immaterial to our analysis.

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evidence and was against the manifest weight of the evidence. Jenney argued that the radar results were not admissible because the city had failed to establish a proper foundation for admission. Jenney maintained that without the radar results, the city had failed to present sufficient evidence of his speed and his conviction could not stand. The court of appeals held that because Santimarino could not produce his certificate to operate the radar unit on the day of trial, the state had not proved that he was qualified to operate the radar unit and the trial court had erred in permitting him to testify regarding the radar results.3 Id., ¶ 8. However, the Ninth District held that the admission of Santimarino’s testimony regarding the radar results was harmless error because his visual estimation of the vehicle’s speed was sufficient to support Jenney’s conviction. Id., ¶ 9.

{¶ 12} We accepted review of Jenney’s discretionary appeal to determine whether a police officer’s unaided visual estimation of a vehicle’s speed, by itself, is sufficient to support a conviction for violation of R.C. 4511.21(D). Barberton v. Jenney, 123 Ohio St.3d 1406, 2009-Ohio-5031, 914 N.E.2d 204. We hold that a police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21(D) without independent verification of the vehicle’s speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization that develops and implements training programs to meet the needs of law- enforcement professionals and the communities they serve, and is experienced in visually estimating vehicle speed.

Analysis {¶ 13} The trial court found appellant guilty of “traveling over the speed

limit.” Pursuant to R.C. 4511.21(D)(6), “[n]o person shall operate a motor

3 The city did not appeal the Ninth District’s decision that the radar results were inadmissible. Because the issue is not before us, we do not consider whether Santimarino’s testimony regarding his training and certification in operating the radar unit was sufficient evidence to prove that he was qualified to operate the unit.

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vehicle * * * upon a street or highway * * * [a]t a speed exceeding the posted speed limit * * *.” Jenney does not dispute that he was operating a motor vehicle on a street or highway and that the posted speed limit was 60 miles per hour. The only element of the offense that Jenney challenges as not being supported by sufficient evidence is the speed at which he was driving.

{¶ 14} “ ‘ “[S]ufficiency” is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.’ ” State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541, quoting Black’s Law Dictionary (6th Ed.1990) 1433. “In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law.” Id. In reviewing a challenge of the sufficiency of the evidence, “ ‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ ” State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, quoting State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

{¶ 15} “Visual observation has long been held a valid means of determining the speed of a moving vehicle as long as the witness has a reliable opportunity to view the vehicle.” State v. Harkins (Aug. 5, 1987), 4th Dist. No. 431, 1987 WL 15492, at *3. A majority of the appellate districts that have considered the issue have held that an officer’s testimony that in his opinion, a defendant was traveling in excess of the speed limit is sufficient to sustain a conviction for speeding. Kirtland Hills v. Logan (11th Dist.1984), 21 Ohio App.3d 67, 69, 21 OBR 71, 486 N.E.2d 231; State v. Dawson, 5th Dist. No. 03- COA-061, 2004-Ohio-2324, ¶ 21-23; Cincinnati v. Dowling (1st Dist.1987), 36 Ohio App.3d 198, 199-200, 521 N.E.2d 1140; State v. Gellenbeck, 12th Dist. No.

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CA2008-08-030, 2009-Ohio-1731, 2009 WL 975746, ¶ 19-20; Columbus v. Bravi (Mar. 5, 1991), 10th Dist. No. 90AP-1135, 1991 WL 33095; State v. Wilson (Nov. 20, 1996), 9th Dist. No. 95CA006285, 1996 WL 668993, at *1. In so holding, many of these courts have considered the testifying officer’s training and experience visually estimating vehicle speed. Dawson at ¶ 21-23 (noting that the trooper had received training at the Ohio Highway Patrol Academy on how to accurately estimate the speed of moving vehicles, had passed the test at the academy, and had been a trooper for four and a half years); Dowling at 199-200 (noting that the officer was trained in visually estimating vehicle speed and had 29 years of experience); Gellenbeck at ¶ 19-20 (noting that the trooper testified regarding his training to accurately visually estimate vehicle speed); Kirtland Hills at 69 (noting that the officer’s testimony regarding his visual estimation was based on his knowledge and expertise).

{¶ 16} Jenney relies on decisions by the Second, Third, and Eighth Districts to support his argument that an officer’s visual estimation of a vehicle’s speed, alone, is insufficient to support a conviction pursuant to R.C. 4511.21(D). See Middleburg Hts. v. Campbell, 8th Dist. No. 87593, 2006-Ohio-6582, 2006 WL 3630780; State v. Saphire (Dec. 8, 2000), 2d Dist. No. 2000 CA 39, 2000 WL 1803852; State v. Meyers (Dec. 29, 2000), 2d Dist. No. 2000 CA 49, 2000 WL 1879104; State v. Westerbeck (June 19, 1987), 3d Dist. No. 17-86-18, 1987 WL 13063.

{¶ 17} The Eighth District held that an officer’s visual estimation of a vehicle’s speed, alone, is insufficient to support a conviction for speeding, stating that “the mere educated guess of the arresting officer as to the speed of a vehicle is insufficient to overcome the presumption of innocence and the burden of proof beyond a reasonable doubt for conviction.” Campbell, 2006-Ohio-6582, ¶ 15.

{¶ 18} Although Jenney’s reliance on the Eighth District’s decision in Campbell is sound, his reliance on the Second District’s decisions in Saphire and

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Meyers and the Third District’s decision in Westerbeck is misplaced. After its decisions in Saphire and Meyers, the Second District held that testimony regarding an officer’s visual estimation of speed, alone, may be sufficient to support a conviction for speeding upon an adequate showing of the officer’s training and ability to accurately visually estimate the speed of vehicles. State v. Konya, 2d Dist. No. 21434, 2006-Ohio-6312, 2006 WL 3462119, ¶ 7-8, 14. In Konya, the court held that based on the trooper’s 12 years of experience in law enforcement and extensive training in visually estimating the speed of vehicles, along with the fact that he had had an unobstructed view of the vehicle in question for more than a mile, his testimony was sufficient, in and of itself, to establish the defendant’s speed. Id. Similarly, the Third District recently explained that its decision in Westerbeck is limited to cases in which the officer’s testimony is “too vague and indefinite for a finding of guilt,” stating that courts that have interpreted Westerbeck as holding that visual-estimation testimony is insufficient as a matter of law have misconstrued its holding. State v. Harris, 3d Dist. No. 9- 09-03, 2009-Ohio-2616, 2009 WL 1579250, ¶ 13, fn. 3.

{¶ 19} The Eighth District stands alone in holding that an officer’s visual estimation of the speed of a vehicle is insufficient to support a finding of guilt, and we agree with the courts that have found the opposite. Rational triers of fact could find a police officer’s testimony regarding his unaided visual estimation of a vehicle’s speed, when supported by evidence that the officer is trained, certified by OPOTA or a similar organization, and experienced in making such estimations, sufficient to establish beyond a reasonable doubt the defendant’s speed. Independent verification of the vehicle’s speed is not necessary to support a conviction for speeding.

{¶ 20} The officer’s credibility remains an issue for the trier of the facts. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 120, quoting State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d

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212, paragraph one of the syllabus. “Because the trier of fact sees and hears the witnesses and is particularly competent to decide ‘whether, and to what extent, to credit the testimony of particular witnesses,’ we must afford substantial deference to its determinations of credibility.” Konya, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson (Aug. 22, 1997), 2d Dist. No. 16288.

{¶ 21} At the time of the traffic stop, Santimarino had been employed as a patrolman with the Copley Police Department for 13 years. He is trained to visually estimate vehicle speed to within three to four miles per hour of the vehicle’s actual speed, he is certified by OPOTA in visually estimating vehicle speed, and he has performed hundreds of visual estimations since becoming a police officer in 1995. Santimarino testified that based on his training and experience, he visually estimated that Jenney was traveling 70 miles per hour at the time of the traffic stop. Santimarino’s testimony was sufficient to support Jenney’s conviction for traveling at a speed above the posted limit in violation of R.C. 4511.21(D). Further, the trial court found Santimarino’s testimony credible, and based its finding of guilt on the officer’s visual estimation, noting that his testimony on the estimated speed was his “strongest” testimony.

{¶ 22} Given Santimarino’s training, OPOTA certification, and experience in visually estimating vehicle speed, his estimation that Jenney was traveling 70 miles per hour was sufficient to support Jenney’s conviction for driving over the posted speed limit of 60 miles per hour in violation of R.C. 4511.21(D).

Conclusion {¶ 23} A police officer’s unaided visual estimation of a vehicle’s speed is

sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21(D) without independent verification of the vehicle’s speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization that develops and implements training programs to meet the needs of

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law-enforcement professionals and the communities they serve, and is experienced in visually estimating vehicle speed. Given Santimarino’s training, OPOTA certification, and experience in visually estimating vehicle speed, his estimation that Jenney was traveling at 70 miles per hour was sufficient to support a conviction for driving over the posted speed limit of 60 miles per hour in violation of R.C. 4511.21(D). We therefore affirm the judgment of the court of appeals and uphold Jenney’s conviction and fine.

Judgment affirmed. PFEIFER, LUNDBERG STRATTON, LANZINGER, and CUPP, JJ., concur.

O’DONNELL, J., dissents. BROWN, C.J., not participating.

__________________

O’DONNELL, J., dissenting. {¶ 24} I respectfully dissent. {¶ 25} While a police officer who is trained, certified by the Ohio Peace

Officer Training Academy, and experienced in estimating a vehicle’s speed may, as any other expert witness, offer an opinion of the speed of a moving vehicle during testimony in a court proceeding, I do not agree that such testimony per se is sufficient evidence to support a conviction for speeding. Like any other witness, a police officer’s credibility is to be determined by the jury or other fact- finder. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 120, quoting State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O2d 366, 227 N.E.2d 212, paragraph one of the syllabus (“ ‘[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts’ ”). In fact, jury instructions given regularly by trial judges advise that a jury is privileged to believe all, part, or none of the testimony of any witness. See, e.g., State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 120

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(citing jury instruction stating that jurors may believe or disbelieve all or any part of the testimony of any witness).

{¶ 26} Thus, I would assert that a broad standard as postulated by the majority that a trained, certified, and experienced officer’s estimate of speed is sufficient evidence to support a conviction for speeding eclipses the role of the fact-finder to reject such testimony and thus such testimony, if found not to be credible, could, in some instances, be insufficient to support a conviction.

__________________ Michelle Banbury, City of Barberton Law Department Assistant

Prosecuting Attorney, for appellee. John Kim, for appellant.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, and Emily S. Schlesinger, Deputy Solicitor, urging affirmance for amicus curiae, Ohio Attorney General.

__________________

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LaHood, in his blog, said, “This is the end of favoring motorized transportation at the expense of non-motorized…”

You’d a thought he had announced he was a closet Communist.

According to CBS News, “…Not so fast, say some conservatives and industries dependent on trucking. A manufacturers’ blog called the policy “nonsensical.” One congressman suggested LaHood was on drugs.”

The new policy is definitely a move in a new direction.  Previous Transportation Secretaries seemed to have trouble spelling the word “Bike,” let alone adopting policies that didn’t write bikes off the road!  So what possible benefits to our country can there be in riding a bike?

Let’s see:

1. Decrease dependence on foreign oil.  Commuters in the Dayton and Cincinnati Cycle Clubs have personally commuted more than 1.5 MILLION miles since 1995, saving over 60,000 gallons of gas!

2. Every mile ridden is better for the environment than a mile driven.  Reduction of greenhouse gas emissons.  A bike that replaces a car for all travel is equal to planting 170 trees! The Dayton & Cincinnati bike commuters have avoided the release of more than 37 tons of pollutants into the air since 1995.

3. Economically efficient.  Cycling has a lower cost per mile than any mode of transportation except walking.

4. Personal benefits to the rider include better health, improved fitness and the sheer joy of riding a bicycle!  Getting kids on bikes will lower childhood obesity.

5. Finally, bicycles do little to degrade the environment people live in. They create no noise, no stink, no pollution, and no congestion. They do not require massive highways or extensive parking areas. In a collision, they are unlikely to kill, and a cyclist can more easily avoid a collision.  You can fit 12 bikes in a single car parking space.

Right now, more than 55 MILLION Americans ride bikes.  Bicycling and walking account for nearly 10% of the trips we take, and 13% of traffic fatalities but get less than 2% of federal transportation funding.  Out of those figures pedestrian fatalities FAR exceed bicycle fatalities – 4500 to 700.  

Can the bicycle change the world?  Clearly, encouraging more bicycle use can HELP the world be a better, cleaner, healthier, more fun place filled with healthier, energetic and happier people!  To me, that qualifies as changing the world for the better!

“…When man invented the bicycle he reached the peak of his attainments.  Here was a machine of precision and balance for the convenience of man.  And (unlike subsequent inventions for man’s convenience) the more he used it, the fitter his body became.  Here, for once, was a product of man’s brain that was entirely beneficial to those who used it, and of no harm or irritation to others.  Progress should have stopped when man invented the bicycle…” Elizabeth West, Hovel in the Hills

Soapbox Cincinnati is an online E-zine that features news and stories about Cincinnati, financial stories, neighborhood stories, restaurant stories and… a weekly guest blogger.  I was asked to be the Guest Blogger during Bike Month!

You can read my online blog posts here.

I thought the first post should be somewhat historical, the second currently factual and the third futuristically optimistic… at least that was the plan… here’s the first post…

=========

THE DNA OF THE MODERN CYCLING ADVOCATE

Picture this – New York City on Memorial Day. In the midst of a huge “Bike Boom,” tens of thousands of New Yorkers are riding their bicycles through the city on a gorgeous summer day. Cosmopolitan magazine decides it would be a good idea to hold a car race on the streets of NYC that day… and they’re off… six cars racing each other through the streets!

Mr. Henry Wells is doing well in the race but he starts to wobble and crashes into the vehicle operated by Ms. Evelyn Thomas. Ms. Thomas suffers a fractured leg and is carted, unconscious, by ambulance to the Hospital.

Sounds like another day in paradise, eh? Well, it was… except for three significant facts…

1. This bike/car crash occurred on Memorial Day in New York City in 1896…
2. This was the FIRST recorded automobile accident in the U.S. and 
3. Evelyn’s vehicle of choice was a Columbia…. BICYCLE.

Yes, friends, by 1896 that new fangled contraption, the motorcar, was already causing a ruckus on the streets. The same streets shared by pedestrians, folks on horseback, carts, buggies, wagons, bicycles and now … cars.

To understand why today’s cycling advocates fight so HARD to protect our right to ride on the roads you have to understand where our DNA came from. Each strand of “Bike Advocacy DNA” contains bits of tens of thousands of incidents like the one in NYC in 1896.

By 1896 “Bicycle Advocacy” was already in full swing. The League of American Wheelmen [now the more politically correct League of American Bicyclists] was founded in 1880 and reached a MILLION members very quickly. The League was the driving force behind the “Good Roads Movement” – a powerful political movement that focused on electing officials who could get roads PAVED … so commerce could move freely and, oh yea, so bicyclists would have a place to ride!  

Cyclists did so well promoting their cause that the very first Vehicle Codes ever written, in Ohio and around the country, recognized the bicycle as a “vehicle” and permitted the operation of bicycles on the roadway.  That right was re-affirmed here in 2006 when the Ohio legislature unanimously passed the “Better Bicycling Bill.”

May is National Bike Month. On May 19, 2010 the Ride of Silence was again held around the world and dozens of cyclists braved the weather to converge quietly on Fountain Square for a short ceremony. The Ride of Silence honors and remembers cyclists killed & injured the previous year while promoting awareness of road cycling. 

There were 716 cycling fatalities nationally in 2008 — trending down, down, down from a high of 1005 deaths in 1975. The Ride of Silence adds strength, unity, dignity and honor to the Bike Advocate’s DNA.

We continue the fight to protect our right to ride on the public roadways – the same right Evelyn Thomas exercised from the seat of her Columbia back in 1896. The need to protect that right is stronger than ever today and we’ll keep fighting…we’re not going anywhere…

“Cycle tracks will abound in utopia…”~~ H.G. Wells, A Modern Utopia, Chapter 2, Sec 3 [1905]

STEVE SPEAKS/WRITES AT BIKE MONTH EVENTS

May is BIKE MONTH, of course…and I was very excited to be invited by Yay Bikes to speak in Columbus during their Bike Month event!

We had a very nice turn-out on a not so nice evening.  Many folks rode in for the presentation.  I spoke for about an hour on “Protecting Your Right To Ride” – complete with slides and 8×10 glossy photographs with circles and arrows and  a paragraph on the back of each one… as Arlo Guthrie used to sing…  You can read about it here.

I’ve given a similar presentation several times now.  People, even long time cyclists, are often surprised to learn that the VERY FIRST CAR CRASH recorded in the United States involved a man driving a car and hitting a woman on a bicycle!  Yes, friends, in 1896, during the first big “Bike Boom” Evelyn Thomas went down in history as the first cyclist to be hit by a car in the U.S. – at least as far as reported crashes go.

This happened on Memorial Day in New York City and, to me, is one of the very first strands in the DNA that makes up the very core of today’s Bike Advocates.  This DNA has been toughened up through the years by a number of other significant events – The Good Roads Movement, the passage of the very first Vehicle Codes which incorporate the “bicycle” as a “vehicle and much, much more.

The fight goes on today.  More than ever the people who want to relegate cyclists to “paths” and special “lanes” are ready to knock us off the roadways in a heartbeat – all in the name of “protecting” cyclists.

In Florida, the debate goes on.  The legislature is trying to pass a bill that would MANDATE that cyclists use the small bike lanes painted on the far right edge of the roadways.  Cyclists have asked the governor to veto the bill

Florida is Number ONE in cycling deaths and is one of the Big Three, along with California and Texas.  Of the 716 cycling fatalities in 2008, the Big Three states accounted for 287 of them – or a whopping 40%!  I guess you can  lower your risk of being killed on a bike by 40% by simply NOT riding in Florida, California or Texas, eh?

Bike Month also brings the annual Ride of Silence.  This somber event is held all over the world and features cyclists riding on the roadways, slowly and silently, on a relatively short ride to honor and remember those injured and killed on the roadways over the past year.  The ride is also designed to raise awareness in the motoring public that we’re out there, and that we have a legal right to use the roadways.

Last year, the Cincinnati event was featured on the front page of the Enquirer.  This year, from what I can tell, we got no newspaper coverage at all… although the TV News did cover the event.  I was asked to speak at the Fountain Square event, where three different groups of riders met.  We had an excellent turnout again and, fortunately, there were NO names on the Cincinnati list of “fatalities” this year…

One of the topics for discussion last night was SB 174, currently percolating in the Ohio Senate.  At 3pm on “Ride of Silence Day” several members of the Ohio Bicycle Federation were in Columbus to present proponent testimony in favor of the bill!

The “writing” portion of today’s post relates to this site – Cincinnati’s SOAPBOX.

Sean Rhiney asked me to be a contributing Blogger for the next week, so I’ll be submitting 3 blog posts to contribute to the Soapbox history.  My first post will involve a similar lesson to the one posted here – the History of Cycling Advocacy and the DNA of the Cycling Advocate.  The second, I think, will focus on Criminal Motorists & other hot button issues.  The third will entitled “Can The Bicycle Save The World?”

Tune in next week and check out the BLOG tab!

Good Luck and Good Riding!

Steve Magas, The Bike Lawyer

Dogs are said to be man’s best friend,
I’ll grant you all that much…
It’s just hard for me to call him “Pal”
While he has my calf for lunch!

I love dogs… I’ve got two very loveable mutts which together constitute roughly 160 pounds of sniffing, drooling, chewing, running, barking energy. Dogs are great. Dogs are fun. Dogs are … well, you know.   However, dogs continue to be a huge problem for Ohio cyclists, particularly in our rapidly changing “rural” counties.

What are Ohio’s “dog laws?”  Is there a state-wide “leash law?”  What is the so-called “One Bite Rule?”Who do you complain to about dog problems?   How far can you go to protect yourself if you are attacked by a dog while riding your bike?   What can your local club do help to protect ALL riders?  What are your rights if you get hurt?  Should you get a lawyer to help you?? [You might at least GUESS the answer to the last question...]

OHIO‘S DOG LAWS

Ohio Chapter 955 of the Ohio Revised Code is aptly titled, “DOGS.”  Most of the statewide statutes governing dogs in Ohio are covered here, or in the case law that has developed when courts try to interpret those laws.
EVERY dog in the State of Ohio that is “more than three months of age” must be registered in the county in which the dog is kept, owned or harbored.  Tags are to be issued and must be worn.  Failure to buy the tag or have the dog wear it renders the dog subject to “impoundment, sale or destruction” and can lead to a fine of up to $75 in some counties.
There is no statewide “leash law” in Ohio, per se. However, Ohio law does state as follows with regard to the owner’s obligation to control the dog:

(C) Except when a dog is lawfully engaged in hunting and accompanied by the owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of any dog shall fail at any time to do either of the following:

(1) Keep the dog physically confined or restrained upon the premises of the owner, keeper, or harborer by a leash, tether, adequate fence, supervision, or secure enclosure to prevent escape;

(2) Keep the dog under the reasonable control of some person.

That word, “supervision” is tough.  If the dog is running amuck and someone is watching the dog run amuck, is the “supervision” test met?  I think not.  Clearly, the aim of the statute is to confine and restrain the dog from causing injury or damage.  All of the other items on the list provide a definite limitation of movement – leash, tether, fence, enclosure – and the purpose of the list is to “prevent escape.”

There are two very special types of dogs defined in the code which are of GREAT interest riders – “dangerous dogs” and “vicious dogs.”

A “dangerous dog” is one that has

“. . . chased or approached in either a menacing fashion or an apparent attitude of attack, or has attempted to bite or otherwise endanger any person, while that dog is off the premises of its owner, keeper, or harborer and not under the reasonable control of its owner, keeper, harborer, or some other responsible person, or not physically restrained or confined in a locked pen which has a top, locked fenced yard, or other locked enclosure which has a top. . .”

A “vicious” dog is a dog that:

4)(a) ***  without provocation and subject to division (A)(4)(b) of this section, meets any of the following:

(i) Has killed or caused serious injury to any person;

(ii) Has caused injury, other than killing or serious injury, to any person, or has killed another dog.

(iii) Belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.

Compare the language used to define “dangerous” and “vicious” dogs.  Dogs can be labeled “dangerous” if they simply look mean or attempt to bite or “otherwise endanger” any person.  I would certainly argue that dogs which come after bicycles are “endangering” the rider and are “dangerous” dogs.  “Vicious” dogs on the other hand are dogs that have hurt someone.

These statutory provisions provide an opening for you and your local club to help protect ALL RIDERS in the event of a dog attack.  Once a dog is considered “dangerous” or “vicious” the owner is mandated to secure suitable insurance to protect the public from the dog.

Can you protect yourself from an aggressive dog?

Every rider should have a “Dog Plan” in place BEFORE they ride.  What will you do if you encounter a dog?  Do you have something to squirt at the dog?  Do you have a noisemaker, such as one of those compressed air horns which make a huge blast of noise?  Maybe you have a “Dazer” or similar device that will electronically stun the dog?

Whatever your plan, give it some thought and have it in place before you leave the house.  You WILL encounter a dog at some point, so be ready.

You are permitted by law to protect yourself in the event of an encounter with an aggressive dog.  O.R.C. §955.28 is very tough on aggressive dogs.  The statute states that if a dog is “…chasing or approaching in a menacing fashion or apparent attitude of attack, that attempts to bite or otherwise endanger, or that kills or injures a person or a dog that chases, threatens, harasses, injures, or kills livestock, poultry, other domestic animal, or other animal…”  that dog can be killed during the encounter and the person cannot be prosecuted for cruelty to animals.

What should you do if you have an encounter with a dog while riding your bike on the roadway?

First, of course, get yourself safe.  Call 911 and get medical care to the scene.  Do NOT let anyone talk you out of that.  In my experience handling these cases, more people are injured from a fall caused by a dog than an actual bite.  Get yourself taken care of right away. Injuries can be unseen and significant!

Second, notify the owner of the attack immediately.  Get the name, address, telephone, email and any other available contact information.  Write it down.  Send it to yourself in a text message, voicemail or email. Take a cell phone picture of the dog owner’s house.  The address marker.  The yard.  The area where the crash/attack occurred.  Try to talk to the owner.  GET THE DOG OWNER’S INSURANCE INFORMATION.  Dog attacks are typically covered by a homeowner’s policy.

Third, take a picture of the dog with your phone, preferably while the dog is still in the road or in the yard of the owner.  Do what you can to get a photo.  If you can’t get a picture, make notes about the dog.  Breed. Color. Size. Anything special. Again, write it down.  Text it to yourself.  Do it immediately, not a week or two later.  A frequent defense to dog cases is “MY DOG DIDN’T DO IT.”  You may have to PROVE it some day and as soon as you leave the scene, any chance of getting that immediate evidence is gone.

Next, get the dog warden involved RIGHT AWAY when you find a dangerous or vicious dog.  If an incident occurs on a ride, report it right away.  [Your cell phone is really an important tool on your ride, eh?]  Get it out and call the dog warden.  [What? You don't have his/her number?  Take a minute RIGHT NOW to look it up and put it in your cell phone.]  The Dog Warden is a typically a COUNTY official.  Find out if there have been any prior complaints about the dog.

Follow up your phone call with a letter to the Dog Warden outlining what happened. ASK THE WARDEN TO DECLARE THE DOG DANGEROUS OR VICIOUS, if your situation meets the definitions.  Put pressure on the dog warden to act.  Continue to follow up with the Dog Warden.  While most take their jobs very seriously, I have found situations [particularly in rural counties where they are used to dogs having a free reign] in which the Dog Warden has been slow to act.  There are statutes which define his/her duties which can be used to agitate him/her into action if necessary.

Follow up with a letter to the dog’s owner.  If you didn’t get the owner’s name at the scene, learn how to determine from county records who owns the property where the dog came from.  Send a letter, certified, to the owner advising the owner that the dog is dangerous or vicious [depending on your facts].  If you were injured, advise the owner that you’ve been injured and that you plan on filing a claim with his/her homeowner’s insurance.  Tell the owner to contact his/her insurance agent and to have a claims representative call you and be ready to discuss how the incident occurred and the nature and extent of your injuries.

Your CLUB can get involved too.  How?

By posting Ride Reports of dog attacks.  These serve two very important purposes.  First, they warn riders of potentially dangerous dogs.  Second, they provide some measure of PROOF of a dog’s vicious or aggressive tendencies and make it difficult for an owner to contend that Fido has never EVER chased a cyclist before.   If the Club then follows through and sends its OWN letter to the owner, which is kept on file or posted on the webpage, then even more proof of the dog’s aggression is set forth.  The Club’s letter should put the owner on notice that it has received a report from one of its riders that the owner’s dog left the property and was aggressive towards the riders, or caused a crash, or whatever… the mailing of such a letter, via certified mail, again puts the owner on notice and may cause him to chain up the dog before he gets sued!

What if you are INJURED by the dog?  What are your rights?

Ohio has one of the very best “dog laws” in the country.  Section 955.28 of the Revised Code imposes liability on the dog’s “owner, keeper or harborer” for “damages for any injury, death, or loss to person or property that is caused by the dog…”  The only exceptions to liability are if the person who suffers injury was committing a criminal offense on the owner’s property, was committing or attempting to commit an offense against any person or was “teasing, tormenting or abusing” the dog on the owner’s property.

The bottom line – if a dog comes OFF the owner’s property and causes a bike crash, the cyclist WINS, even if the dog was just trying play and seems genuinely upset that you crashed during the game of “Catch The Cyclist!!”

STRICT/ABSOLUTE LIABILITY

In most “tort” cases you have to prove that the other guy was “negligent” or guilty of some level of culpability in order to win.  Not so for dog owners.  One Ohio Supreme Court case described a dog owner’s culpability as “absolute liability.”  This means that it doesn’t matter if the dog’s owner took every possible precaution, used the best fence and the strongest leash or chain. If the dog leaves the property and causes damage to passing cyclist, the dog’s owner is liable.

Note that there is NO requirement in the law that dog actually BITE the person.  The law permits recovery for ANY and ALL damages. If a playful dog comes out of its yard and chases a  cyclist, who then crashes, the owner is liable – even if the dog was never aggressive and even if the dog comes up and licks the cyclists hand, dials 911 with its nose and barks for help!!

In some states, there is a “one bite rule” which means the owner is not liable until the dog actually bites someone or acts aggressively.  Not so in Ohio, although evidence of aggression can open the door to more damages known as “punitive damages.”  Once a dog owner is aware that the dog can be aggressive the burden to protect the public is even stronger and the owner can be “punished” by the imposition of “punitive damages” on top of any compensatory damages.

How do you HANDLE a claim like this?  Do you need a lawyer?

Short answer, YES.

Of course, I’m a “bike lawyer” who has handled 200+ “bike cases” and some 50 or more “dog cases” so a cynical reader might think I would automatically say YES.  However, “dog cases” can be tricky.  Adjustors might try to tell you that certain defenses apply to limit or deny your claim, when such is not the case.  You may not be in the best position to evaluate the value of your claim.  Indeed, in many cases, I end up getting involved because the dog’s owner simply refuses to answer the door or phone or otherwise respond to the injured victim’s request for help.

What does a lawyer do in such a claim?

First, we investigate the crash.  I gather ALL information, talk to all witnesses, get the police report, dog warden records, photographs and such to clearly and undeniably establish the owner is liable.  I contact the owner and get the homeowner’s insurer involved.  I track your recovery, gather ALL of your medical records, medical bills, wage loss documentation and out of pocket expenses.  I handle all communications with the owner, insurer, dog warden, county, and courts, if needed.  Usually, dog cases settle without a lawsuit because the law is so strong.

Probably the most important thing I do is organize all of this data, review it top to bottom and give you my very best professional opinion of what your case is “worth”, based on handling hundreds and hundreds of injury and death cases, 200+ “bike cases” and 50+ “dog cases.”   I present the legal, medical, forensic and engineering data about your case to the insurer in a package designed to maximize your recovery.  I handle all negotiations and, usually, get the case settled without the need for any litigation.

So, there you go… a short course in Dog Law 101!

GOOD LUCK AND GOOD RIDING!
Steve Magas, The Bike Lawyer

Looking for bicycle accident or crash statistics?  They can be hard to find sometimes.

NHTSA has a LOT of publications to look at.  FINDING them has always been difficult, though.

Now it’s easy.

A  simple chart, found here, allows you to review an organized list of “Traffic Safety Fact Sheets.”  These “Fact Sheets” discuss crashes involving bicycles, motorcycles, trucks, children, alcohol and other issues.  Each issue is dealt with separately – and the list is organized by year.  Each year’s report also contains some historical data so you don’t necessarily have to read every report to get the flavor of trends and numbers.

For example, the 2008 Bicycle sheet can be found here.  This sheet gives you traffic crash/fatality/injury statistics for cyclists in 2008, but also reviews 10-year trends.

The 2008 figures are 6% lower than the 1998 death totals.  69% of cyclist deaths occurred in urban areas [compared to 50% in 1975].  The “typical” cyclist killed on the roadway would most likely be a male [87%] with an average age of 41.  The crash killing this cyclist would have occurred at a NON-intersection [64%] between the hours of 5pm and 9pm [28%] during the months of June [9%] or September [12%].  Of the various age groupings, the largest number of deaths occurred in the  45-54 year old age group  for both men [161] and women [19].

With regard to cycling deaths by state – the “Big Three” led the way.

Florida – 125
California –  109
Texas – 53

Next we have New York [42] and North Carolina [32].  No other state had more than 30 fatalities.

Florida’s deaths have definitely been followed closely by Florida’s cycling advocates. One has started a webpage which maps the deaths.  You can check it out here. Around the country cycling advocates continue to be up in arms over the treatment cyclists receive from motorists, police and the media.  From Portland, OR to Portland, ME you can dial up dozens of stories in the news through a quick Google search which detail harsh, unfair or blatantly criminal behavior towards cyclists.

One good way to keep up on these stories is through a Facebook group called “Cyclists Against Reckless Drivers” or through the “CARD” webpage.  CARD’s founder, Steve Donaldson, updates the page daily with stories from around the world.  CARD is a major proponent of the passage of “three foot laws” which would require cars to give AT LEAST three feet of clearance when passing cyclists.

Another Three Foot proponent is Joe Mizereck, founder of the Three Foot Please webpage.   Joe puts his time, energy and money where his heart is – keeping this page running through contributions and the sales of his 3 Foot Law jersey.  You can see mine in the pic below. I’ve been using it as a prop during my recent speeches at O.D.O.T. conferences and for the JDRF riders.

In Ohio we’re still pushing for SB 174, introduced by Sen. Teresa Fedor.  The bill would require a minimum of three feet as a safe passing distance.  While not perfect [how do cops look at a situation and determine if the 3' distance was met?] it’s as good as the current law ["safe distance"] while providing an outstanding educational tool to help teach motorists about how to pass bikes safely!

Keep on riding!

Steve Magas

The Bike Lawyer

According to the Miami New Times, prosecutors filed a motion to return Bertonatti to jail after he had posted a $100,000.00 bond.  The reason, according to the report, was that Bertonatti ”lied to Judge David Miller” about possessing only a Venezuelan passport and because he has a history of missing court appearances in traffic cases.

The New Miami Times reports, “…According to prosecutors, Bertonatti has “an additional passport issued by Argentina,” which he didn’t see fit to mention during his bond hearing.   What’s more, prosecutors say that Bertonatti has missed court hearings on four separate occasions in the past on traffic charges.  Strangely, prosecutors also testified in court that they have reason to believe that Bertonatti may actually hold a third passport that he didn’t mention in his bond hearing, from Romania, of all places…”

In this case, Bertonatti is charged with being over the 0.08% BAC limit [he reportedly blew a 0.122%] and with hitting, and killing, a bicycle operator and then leaving the scene, dragging the  man’s bicycle for miles while the cyclist lay bleeding to death on the side of the road.

On January 8,2010, he received a speeding ticket for going 80mph in a 50mph zone.  Nine days later, he allegedly struck and killed the cyclist.  This crash occurred in the morning.  He is facing charges of felony DUI manslaughter, vehicular homicide, driving without a license, leaving the scene of a fatal accident, and resisting arrest. He has entered a Not Guilty plea.

On February 8, 2010, SunSentinel.com reported as follows:

“Miami-Dade Circuit Judge David Miller ruled that Carlos G. Bertonatti, 28, should be held without bond after prosecutors alleged he was not entirely truthful when he told the court he had only a Venezuelan passport.

Bertonatti holds another passport from Argentina, which federal agents discovered. Bertonatti has also listed himself as a citizen of Romania, in addition to residential-alien status in the United States.

Armed with evidence of Bertonatti’s multiple citizenships, Miller granted the wish of prosecutors, who feared the suspect might flee the country to evade prosecution.

“The web of deceit has caught up with him,” State Attorney Katherine Fernandez-Rundle said. “He can’t bond out and now he’s got to sit there, in jail, and wait.”"