If you have been reading our recent client stories, you probably noticed that in many crashes involving bodily injury to a cyclist, the city or district attorney often offers drivers a plea deal. These plea deals, which result in reduced charges and penalties/fines, seem very unjust to the injured cyclists.

While their injuries may require surgery, physical therapy, time off from work, medical bills, pain, loss of independence, an inability to function daily, stress, and anxiety—just to name a few—the drivers get back to daily life and driving their cars almost immediately. Many will not even have to go to court; they will plead guilty to a lesser charge and pay minimal fines.

Yet, the cyclist will not be able to get back on the bike right away. Some will never get back on because they are afraid of another collision or death. Injured cyclists continue to deal with the physical and mental toll the crashes take on their daily lives and the possible lifelong impacts.

This is the case of our client, Ken Andrews, who was t-boned while riding in the bike lane on his way to his job in downtown Denver in June 2017. The driver, initially ticketed for taking the right of way on a left turn (a three-point violation), was offered (and she accepted) a plea deal for operating a vehicle with defective headlight equipment (a one-point violation). She paid $135 in traffic violation and court fees.

Ken, on the other hand, was diagnosed with:

A grade 1 acromioclavicular (AC) shoulder separation on his left side.
A fractured scapula on his left side.
A sprained wrist to his left hand.
A small, painful “bony” lump, or ganglion cyst, at the base of his right thumb.
Severe muscular, tendon, ligament joint bruising in his right shoulder and a partial labral tear.
Road abrasions along the underside of his right elbow and around his right knee cap.
Overall bruising along left and right side of his body.
Continued pain and decreasing functionality in his right arm and right elbow.

Following the crash, Ken’s overall quality of life diminished, as he could not function independently to complete regular daily activities like bathing, dressing himself, and preparing food. He was not able to care for his four-year-old daughter. Ken could not hold his daughter and provide her the physical attention to which she was accustomed. He was also very concerned about making a full recovery and the possible long-term problems.

Not only did he have to deal with the physical impacts of the crash, it also took a mental toll on him. It was six months before Ken was ready to get back on his bike and back riding on the streets. He was nervous the first several months, and it was very hard to trust traffic. Ken, who has been riding bikes since he was eight years old, commutes both in Denver and Boulder as much as he can. He is an avid mountain bike rider and races both mountain bike and cyclocross. He is riding again, but it does not take much for him to get nervous on the road. Ken rides much more defensively now and tries to ride on bike paths exclusively, if possible, whereas he used to have no qualms about riding in traffic around the city.

Ken feels that Denver law enforcement did not charge the driver appropriately. Instead of issuing her a ticket for careless driving, the ticket was for taking the right of way when turning left. If, in principle, law enforcement ticketed drivers for careless driving when cyclists are involved, and city and district attorneys did not offer plea deals, drivers might actually be more cautious around cyclists knowing they could lose their license or even serve jail time. If you are convicted of a careless driving charge, your insurance rates might increase, your insurance company could drop you, and your permanent driving record will be reflected. Ken’s case never got that chance here.

What does Ken want drivers to know about keeping cyclists safe? Pay attention, put the phone down, and respect that there are bike lanes in Denver. Drivers are responsible to monitor them for traffic just like other cars. Be aware that when making turns, especially in the city, there are lots of cyclists and pedestrians. He believes that it is crucial to enforce the laws that exist and that law enforcement should apply them correctly. “Then city and district attorneys must stand behind them!” he says. Ken also emphasizes that the number one thing cyclists need to do is obey traffic laws and remove the stigma of cyclists. “We need to be seen as complete equals to the auto user.”

Ken wishes more cyclists knew how bad the imbalance is between auto users and cyclists in the eyes of the legal system:

“While the laws in effect do protect the more vulnerable, enforcing them seems to be non-existent in many ways. I think if more cyclists were truly aware of how poorly they will be treated by the justice system and the insurance companies, they would be more active/involved in protest and demanding better bike infrastructure and enforcement habits. It seems most don’t recognize how bad it is until they have the unfortunate experience of going through a collision and the legal process.”

— Ken Andrews

He also wants cyclists to know that insurance companies will do everything to pin blame on the most vulnerable party (pedestrians/cyclists) in the case, and how they use smaller cases to test the system, ie, being difficult to resolve on principle even if fault is extremely clear. Through his experience, he learned “how completely irritating the insurance adjuster system is, and the extents that the insurance company goes to make the cyclist at fault when the defendant is clearly at fault.” Ken was surprised how little pain and suffering is valued and how hard it is to prove.

In order to have an impact to make cycling safer, Ken is involved with several bike advocacy groups. He has always been a member of PeopleForBikes and was involved with Bicycle Colorado and their work to get the recent vulnerable road user law (SB19-175) passed that increased penalties for careless driving causing serious bodily injury to a vulnerable road user (VRU). In the effort to pass this law, he testified before the State Senate while the bill was moving through committees.

Hottman Law Office has spent years educating law enforcement on cycling laws here in Colorado. Our bike advocates and elected officials gave us the VRU law as of May 29, 2019, which will dock the driver twelve points, effectively taking their license for a year. The DA need only prove careless driving (same as they would normally do for a four-point careless charge) plus serious bodily injury (doctor signs a form saying injuries were serious as defined by statute) plus VRU (cyclists are defined as VRUs). Yet, we are seeing serious resistance from DAs here in the front range area.

Drivers are not being adequately punished. They hit and injure cyclists. There is now a law to punish drivers—12 points assessed to their license. This needs to be the norm in these cases across the board. You can have the police do everything right, and you can have a great law on your side, but until it gets used, nothing changes.

It’s time to step up and take licenses and driving privileges away from drivers who hurt cyclists. Period!

Click HERE to read more about Beth McCann, Denver’s DA.

Denver District Attorney’s Office

Address:
201 W. Colfax Avenue
8th Floor
Denver, CO 80202
Email Address: info@denverda.org
Fax Number: 720-913-9035

On November 11, 2016, our client Brian Starling was riding his bike near S. Ulster Street and E. Technology Way in Denver, when a motorist hit him from behind (the police report described it as a “rear-end” impact). The motorist told Denver PD, “the sun was in my eyes, I had no idea what I hit. I thought it was a traffic cone. I pulled over to look at my car and that’s when I noticed the cyclist on the ground.”

The motorist was cited (appropriately, I might add –thanks to Denver PD) for careless driving – a four point violation which typically carries fines, the chance for restitution for the victim, (and in some cases we’ve handled, judges have used this charge and ensuing guilty plea to order community service, ranging from 24 hours to 125 hours). Did I mention it’s JUST 4-points?

Denver Traffic Court handled the driver’s ticket. Prior to the Court date, both my office and my client contacted the City Attorney handling the matter, Linda Lincoln. She advised us that Denver City Attorney office policy is to “always plead these 4-point careless bicycling cases to a 2-point violation” and that Brian was welcome to attend the hearing so he could give his victim impact statement to the court before the court determined sentence. She also indicated, strangely, that she would not be present at night court. Hmm.

In Brian’s words,

“When I spoke to Linda, she started off by saying, "I know you are probably upset, but this is the standard plea that we offer in these situations and any judge will accept this. I will not be in court tomorrow night, but you may show up and request that the court not accept the plea."

So – at 6pm, Brian went to Denver Traffic Court with his statement in hand, anxious to speak to the Court and to make his record about the way this collision affected him mentally, emotionally, and physically, as well as the ramifications it had on his family.

Sadly – at court, Brian was prevented from speaking. The court clerk told him he would not be heard, and Brian was left with no choice but to sit and observe as the case was called, pled down to a meaningless 2 point fine, and closed out. The ultimate charge was a “failure to signal for turns,” a 2 point violation which resulted in a fine of just $176.

Brian recalls the conversation with the court clerk as follows:

“Last night when I showed up and spoke to the clerk, he looked at my like he had no clue what I was talking about and said "I don't know if they'll let you speak, but wait until they call his name and I will see what I can do." I then waited for about 30-45 minutes to speak. Once the judge called his name, I walked to the front and stood by the clerk waiting for him to act. As the clerk continued to ignore me, this is our exchange:

Me: "Hey, shouldn't I be talking right now?"

Court Clerk: "I told you I can't guarantee that you will be able to speak."

Me: "I spoke to the city attorney about this yesterday and she advised me to show up and request that the court not accept the plea."

Clerk: "The city attorney doesn't come to night court."

Me: "I understand that, but she told me that I can request that the court not accept the plea."

Clerk: "This is an arraignment, we can not tell a person that they can not enter a plea."

Needless to say, Brian and I were stunned with the way the City of Denver City Attorney’s office handled this case, and of course outraged that the Court disallowed Brian from speaking. That a victim would be invited to attend the hearing and then prevented from speaking, is unconscionable. Talk about re-victimizing someone.

... Had he been given the chance, here is the statement Brian would have made to the Court:

In Mid-November I was hit by a car while riding my bicycle to work. The driver, Ben ____, hit me just 200 feet after the intersection where he turned onto the road I had been travelling and managed to reach a speed of 25 miles per hour despite the fact that he said the sun was blinding him to where he could not see the road in front of him. I was rushed to the ER in an ambulance and the dents on my helmet from hitting a tree stump are signs that this was a time when wearing my helmet could have saved my life. This man who acted so carelessly could not even be bothered to help me off the ground, and instead used our unfortunate time together to blurt out a myriad of excuses for his terrible decision-making.

When my wife, who is 25 weeks pregnant, and I hired our attorney to represent us in this legal matter, we made the assumption that as a citizen protected by a right to share the road peacefully with cars, that justice would be served for my endurance of doctors, appointments, time missed from work, and physical pain from this careless driver’s actions. Until I got word that a 4 point infraction was being lowered to a pathetic 2 point infraction in a plea deal against this driver’s license by the city attorney, who seems both unwilling and uncaring in doing her duty in protecting victims, I was steadfast in my confidence in my city to protect my right to be a citizen cyclist by taking a stance against careless driving. Shockingly, I was wrong.

From the outside looking in, it would appear this city is doing a lot to further cycling rights by adding bike lane mileage, and ensuring that most roads have shared road markers. However, it is in these secretive, almost fly-by-night proceedings that the city makes its true feelings known towards cyclists: that if you are a victim, you cannot depend on justice. That if you are injured by a careless driver, you cannot even count on the faintest hint of punitive action taken. The two point infraction you are levying against this driver is on par with the punishment for failing to use a turn signal. According to the city attorney, my well-being and safety is second rate to a careless driver’s. My suffering means less than his freedom to drive recklessly.

I strongly feel that the city attorney should be ashamed for lowering an already paltry infraction, when she should instead be furthering victim’s rights, making sure their voice is heard and that punitive action is taken against those who deserve it. From the outset, my attorney and I have not sought jail time, we have not sought any penalty that is egregious in any way. However, this driver deserves community service – a time to give back to his community and reflect on his actions when he has taken my safety and sense of peace when biking from me and others who will see this paltry infraction and fear for their own well-being on the road with cars.

I will spend my last words reminding this court and this careless driver that his failure to use common sense when driving almost cost my wife her husband, and our baby its father. Mere inches saved my life. I hope both the city attorney, the judge, and the driver in this case will spend quality time thinking about what I have just stated. As a forgiving person, I certainly hope you never have to encounter the extreme injustice served for me, my wife and our baby today.

Additionally maddening, Brian was prevented from requesting that the Judge hold the case open for restitution pending the outcome of the civil matter/settlement. If the driver’s insurer refuses to pay all of Brian’s damages, he would legally be entitled to seek the remaining out-of-pocket expenses from the driver directly as part of a restitution order in the criminal/traffic case.

If you are a cyclist who lives in Denver and you find this disappointing, please consider the following information:

The City Attorney who handled this matter:

Linda Lincoln

linda.lincoln@denvergov.org

720-913-8081

CA Code Enforcement

Fax: 720-913-8010

The Judge who oversees the traffic court judges is Presiding Judge Marcucci -his info is here: https://www.denvercountycourt.org/honorable-john-marcucci/

We believe it was Judge Callum who heard the case, however it seems to have been the court clerk who made the error in disallowing Brian to speak.

Their contact ph # is here : https://www.denvercountycourt.org/judicial-information/

"Contact the Denver County Court Judicial Discipline Commission, 1437 Bannock Street, Room 108, Denver, CO 80202 (Telephone 720-865-7870) regarding the conduct of Denver County Court Judges or Magistrates. Complaints regarding the conduct of other County or District Court Judges are handled by the Colorado Commission on Judicial Discipline."