I am sure most of you have read the comments posted to cycling websites and news sites following a motorist-bicycle accident. When cyclists perceive that the motorist was behaving irresponsibly, it seems many of the comments posted allude to the fact that the driver should have been charged with “attempted assault” or “attempted murder.” In this emotionally charged environment, the reality of the operation and function of the legal system commonly is distorted or completely misunderstood.

**SIDENOTE: Keep in mind that insurance does not cover an intentional tort, or a crime. So while many in the cycling world want an at-fault motorist charged with "Vehiclular assault" or similar, such a charge may result in "justice" in the criminal case but it will likely result in a $0 recovery in the civil case against the motorist's insurer. Why? Because they can, and will, deny the claim based on the fact that they do not insure criminal acts! Many cyclists prefer a civil monetary recovery over having the "book thrown" at the at-fault driver. Keep this in mind the next time you feel the DA went "too easy" on a motorist, by charging them with careless driving. Such a charge enables the cyclist to pursue and often receive, a civil recovery.

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I thought it might be helpful to explain the charges and the elements that must be proven to support those charges so that we cyclists can all get on the same page when it comes to the criminal charges (and traffic citations) frequently issued in these cases. Please note- this article does not discuss the civil actions that can be filed against the motorist (e.g., a personal injury lawsuit).

Let’s begin with a basic description of the criminal process. Cases involving criminal charges are prosecuted by the District Attorney’s office on behalf of the State of Colorado. The injured cyclist is not a named party to the action but as the victim, is actively involved in the process.

Depending on the citation given at the accident scene (a redacted summons is shown here as an example), or any later amendments to those charges, the case may require a mandatory court appearance by the motorist (Defendant) called an arraignment. At this court appearance, the Defendant has the option of entering a plea of guilty or not guilty. The Defendant may choose to enter a guilty plea because the District Attorney (DA) has offered a lesser sentence in exchange for an acceptance of guilt. The DA will take into account the victim’s (cyclist’s) input in the plea bargaining process, as well as other factors. If this happens, the case is called and the judge hears the DA’s recommendations and the Judge will ask some questions of the Defendant (or their attorney), such as whether they understand they are waiving certain rights. Then the Judge will frequently proceed directly to sentencing.

On the other hand, the Defendant may enter a plea of “not guilty,” either because they feel they did not commit the crimes they are charged with, or they believe that the DA’s office will be unable to prove it at trial. A not guilty plea results in the case being set for a criminal trial, which usually occurs several months later. The victim cyclist will remain involved in this process and will usually be asked to testify. At the trial, a jury will determine guilt or innocence of the Defendant. If the Defendant is found guilty, a sentencing hearing will be set a few weeks after trial. At that hearing, the Judge will render the sentence after considering all factors involved.

Whether or not the case is set for an arraignment, the DA’s office (or their victim witness office) will usually contact the cyclist and ask them to complete a “victim impact statement” as well as a calculation of damages, (such as bike repairs, medical bills, lost wages, and other “hard” costs). These damages are used to determine the amount of monetary restitution owed by the Defendant. (Restitution does not include pain and suffering; pain and suffering damages are only awarded in a civil case). The DA may recommend that the judge order restitution as part of the plea agreement or final sentencing if the Defendant’s liability insurance is inadequate to pay these costs (or if the Defendant is uninsured). The victim impact statement is the cyclist’s opportunity to state their thoughts and feelings about the accident and how it has affected their life. This statement is read by the DA as well as the Judge prior to sentencing. Commonly, the cyclist has the opportunity to speak on their own behalf prior to sentencing, to explain to the Judge how the accident has negatively impacted their life.

Whether the defendant enters a guilty plea, or a jury finds the defendant guilty at trial, it is up to the Judge to determine a sentence based on:

the DA’s recommendation (with consideration given to victim’s damages)
the Defendant (motorist’s) criminal history
defense counsel’s recommendation
the sentencing guidelines for that particular violation

Let’s move on to a discussion of the two most common citations issued in cases where a motorist causes a collision with a cyclist: reckless and careless driving. We’ll then compare them with the more serious felony charge of vehicular assault. Each statutory section contains the elements the police must investigate and that the DA must later prove at trial. I will not discuss attempted murder here.

C.R.S. § 42-4-1401. Reckless driving--penalty

(1) A person who drives a motor vehicle… in such a manner as to indicate either a wanton or a willful disregard for the safety of persons or property is guilty of reckless driving…

(2) Any person who violates any provision of this section commits a class 2 misdemeanor traffic offense. Upon a second or subsequent conviction, such person shall be punished by a fine of not less than fifty dollars nor more than one thousand dollars, or by imprisonment in the county jail for not less than ten days nor more than six months, or by both such fine and imprisonment.

By way of example, in civil cases, Colorado Civil Jury Instruction 9:30 defines willful and wanton conduct as:

“Willful and wanton conduct”/”wanton and reckless disregard of the rights and feelings of others” means an act or omission purposefully committed by a person who must have realized that the conduct was dangerous, and which conduct was done heedlessly and recklessly, either without regard to the consequences, or without regard to the rights and safety of others, particularly the plaintiff.

Applying this definition in the context of a case where a cyclist is hit from behind by a motorist, you can understand how difficult it would be to prove the INTENT or purposeful commission component of this definition unless there were witnesses behind or next to the car who observed the driver steer directly into the cyclist. This is why most cycling cases result in a CARELESS driving citation given to the driver. It can be basic “Careless driving” (minor injuries), “Careless driving causing bodily injury,” or “Careless driving causing serious bodily injury”. Serious injuries are usually defined as sprains, fractures, extended hospitalization, or surgery.

A “Careless driving causing serious bodily injury” charge is not a ticket the driver can simply pay; it is a criminal charge and requires a mandatory court appearance (arraignment as discussed above).

§ 42-4-1402. Careless driving--penalty

(1) A person who drives a motor vehicle… in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving.

(2)(a) Except as otherwise provided in paragraphs (b) and (c) of this subsection (2), any person who violates any provision of this section commits a class 2 misdemeanor traffic offense.

(b) If the person's actions are the proximate cause of bodily injury to another, such person commits a class 1 misdemeanor traffic offense.

(c) If the person's actions are the proximate cause of death to another, such person commits a class 1 misdemeanor traffic offense.

Both offenses of reckless driving and careless driving consist of elements of fact that include driving a motor vehicle, and possessing a state of mind in “disregard” of or “without due regard” for safety. The two offenses differ only in that the degree of negligence required is far more culpable in reckless driving, although it falls short of intentional wrongdoing. People v. Chapman, 1977, 557 P.2d 1211, 192 Colo. 322.

Here are the sentence ranges applicable to a class 1 or class 2 misdemeanor:

Classes

Minimum Sentence

Maximum Sentence

Class 1

6 months / $500 dollar fine or both

18 months / $5,000 dollar fine or both

Class 1

(extraordinary risk)

6 months / $500 dollar fine or both

24 months / $5,000 dollar fine or both

Class 2

3 months / $250 dollar fine or both

1 year / $1,000 dollar fine or both

Compare the two charges’ elements above, to the more serious felony charge of vehicular assault:

§ 18-3-205. Vehicular assault

(1)(a) If a person operates or drives a motor vehicle in a reckless manner, and this conduct is the proximate cause of serious bodily injury to another, such person commits vehicular assault.

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On a class 5 felony, a Judge may impose 1 year prison (presumptive minimum) up to 3-4 years in prison (presumptive maximum).

While I understand cyclists are often outraged when they read of these incidents, and feel that motorists sometimes get off “easy” in these cases, it is important to remember that the police and the District Attorney have burdens they must meet in order to charge a defendant criminally and in order to prosecute those charges.

I recently attended an arraignment of a motorist that hit my client causing him a broken hip, which resulted in a total hip replacement. The driver showed immense remorse in the courtroom, and apologized to the judge and to my client. The DA offered a plea deal which included fines, driving classes, and the threat of jail time if he fails to perform those tasks. It is amazing how a bold, defiant motorist at the collision site becomes very remorseful and apologetic when called in before a Judge and informed they face jail time. His apology left an impact on my client who left the courtroom with a sense that justice had been served. More importantly, an apology from the driver commonly has a very positive impact on the cyclist and helps them begin to put the incident behind them.

I have also attended an arraignment recently where the law officer’s original citation was phrased “disobeyed red signal light” so the judge sentenced the driver to simply pay a fine. The police report did not note bodily injury although my client did have to undergo surgery for the injuries he sustained. On the date of the arraignment, the Judge did not give us an opportunity to inform him or the DA about the bodily injury sustained by my client. The driver paid the fine and the case was closed. This was immensely dissatisfying, and my client and I both felt that justice was not served in this instance. For this reason, I always recommend that cyclists who are diagnosed with a serious injury following the accident IMMEDIATELY notify the responding law enforcement agency and/or the DA, so that the charges can be amended and a proper court hearing can be held.

Many cyclists tell me they do not want to “mess with” the criminal case proceedings. They do not want to take the time to sit in court (sometimes three or four times, if the hearing is rescheduled or reset) and many times they do not wish to see the motorist in person in a courtroom. They prefer to distance themselves from the situation and wish to just focus on the civil action. However I strongly encourage my clients to take part in the criminal case proceedings. They are the victim and they need to voice their position and inform the court about the effects the accident had on their life. Both the criminal and civil cases deserve attention and energy from the cyclist. It is important for them to invest themselves in the process in order to obtain the best possible result.

I hope cyclists can see how the criminal and civil justice systems work in these cases. Also that the motorists involved are punished even if the public perception is that they “got off easy” which in reality is seldom the case. It is important to remember that they must live with the knowledge in their conscience that they seriously injured a fellow human being. And while it may not seem like it bothers them at the scene, you can rest assured that it will sooner or later. I’ve talked with many motorists who report anxiety, nightmares, regret, shame, and the need for professional psychological counseling after colliding with and injuring a cyclist.

With the foregoing in mind, I encourage the cycling community to remember that the system works, and that there is frequently more going on behind the scenes than is perceived by the public eye. Often, media postings do not provide all of the details, nor does the public typically hear of the ultimate resolution in a case. Before you get upset and post a scathing or irrational comment online (that reflects poorly on cyclists), please be sure you get all of the facts first.

*Many thanks to Michale Colchin for his assistance in editing this article.