Cyclist Urges Others to Ride With All Available Technology

Cameras, computers, and crash alerts necessary to keep cyclists safe

Not only does cyclist Anthony Hardwick recommend riding with cameras, computers, and crash alerts to keep cyclists safe, he also wants to emphasize the importance of technology to document motorists when they are not being safe.

The driver who hit Anthony tried to wiggle her way out of accepting responsibility for the crash and even tried to pin blame on him by saying that Anthony was speeding in a school zone. In court, Anthony was able to point to his Garmin data and prove that he was not traveling above the speed limit. “The computer holds them accountable,” said Anthony. He has also invested in cameras that cost him $60 total which he runs front and rear facing now, just in case.  Anthony strongly encourages any bicycle rider to get a cycling computer that sends an alert via your cell phone in the event of a crash, or find a cell phone app that does the same. “Having loved ones at the scene to help you make decisions when you’re concussed is so invaluable.  I was a groggy mess and my wife’s help was so wonderful.”  Traffic camera footage, if available, can also be useful in holding drivers accountable. 

Anthony, a Bicycle Service Department Manager, has been riding bikes since he was in college back in 2006. He enjoys group rides and competition but mostly rides for transportation purposes. On January 22, 2020, Anthony had been riding the bike path that runs from the South Platte Trail west out to Lakewood. Anthony had gotten off the path and was riding in a bike lane down 10th Avenue.

He had chosen to ride 10th Avenue because there is a wide, demarcated section of the road, a bike and parking lane, that is used by motorists and cyclists who are trying to avoid being in/slowing down traffic.  Anthony had just advanced east from the stop light at 10th Ave and Sheridan.  

The bike and parking lane begins just past Zenobia Street.  As Anthony got closer to Cowell Elementary School, more and more parked cars were in the lane, and he was forced out into the car traffic section of the road. In addition,  he was trying to be mindful of the school zone speed limit and had slowed to middling speed as denoted by this graphic from his Garmin:

Anthony returned to the parking/bike lane past Utica Street. Right then and there, an SUV that had just passed him seconds earlier turned right into the alley just in front of Anthony.  The driver did not signal the turn or yield to him. Anthony crashed into the back passenger corner of the Acura RDX and was thrown from his bicycle. 

Anthony was terrified as he smashed into the back of the car.  “I thought I might break my neck and die. I literally thought ‘My neck is breaking’ as the impact was made.  As I lay on the pavement, I wiggled my toes in my shoes and realized I wasn’t paralyzed and I could still breathe, so then I was just really really mad,” explained Anthony.

He lay in the street for several minutes because he didn’t want to move knowing that this could cause paralysis after an impact. However, bystanders moved him out of the road to the sidewalk.  Anthony was  disoriented, and a person asked if he wanted to have 911 called. He nodded his head “yes” because he was feeling very shaken up and was worried that he was hurt worse than he could tell.  Anthony called his wife. Fire and EMS responded as well as Denver PD. EMS determined that he was not in critical danger and could ride to Denver Health Urgent Care with his wife who was on the way to the scene.

The driver claimed that she did not see Anthony, that he came out of nowhere, and that he was faster than she thought. The Denver Police Department cited the driver with careless driving. 

Anthony was diagnosed with a concussion, back muscle strains, neck muscle strain, and a sprained left ring finger.  “I am extremely blessed that I didn’t break any bones.  My muscles did suffer massive strains and I felt like I had been hit by a truck the next day, mostly because I had been hit by a tiny truck,” said Anthony. He was on bed rest for a week due to the concussion. Anthony missed work from January 22 - February 2, 2020, as he was unable to perform tasks needed to manage the service department. “I felt stressed that I was missing work right after getting promoted to a manager’s position.”

His wife has had to deal with the majority of the insurance issues as they have coverage through her work.  Anytime the health insurance company had a question or conflict with something, they did not call me, they called her, because she is the primary contact on the policy. “This stressed the hell out of her,” said Anthony. She also missed work when he was concussed because Anthony needed to be monitored just in case he had brain bleeds.

Anthony appeared in court on June 29th, 2020 to testify at the driver’s hearing. She represented herself and was trying to dodge being at fault. Anthony said that she tried to insinuate that he was not paying attention because he was wearing headphones.  “Imagine her surprise when I said that was impossible because I always pull off the ear bud silicon cover on my left ear so that I don’t ride with an ear bud in the ear that is closest to traffic.  That is a little trick a police officer in Omaha, NE told me about. This way the driver can’t even play like you had an ear bud in because it won’t stay in your ear!”

The driver was found guilty of careless driving and was assessed four points to her license. She paid $135.00 in fines and fees.  “It was only four points on her license and she got to keep her driving privileges.  I was surprised … but that is the state of affairs until those who write the laws start taking road cycling seriously as a means of transport.” 

“Once again, we have a situation here where we have adequate laws on the books- the VRU law, among others - but we have city attorneys and DAs unwilling to use those laws fully. Anytime a plea deal is offered like it was here, the laws we fight so hard for, go unused, un-utilized. Driving behavior will not change until DAs and City Attorneys start taking away drivers’ licenses... until the PRIVILEGE of driving is suspended for a period of time.”

— Megan Hottman

Anthony feels that the outcome of the civil case was fair, and that he was compensated well for his injuries and his bicycle. However, he said it is hard to feel like the justice system is taking cyclists being hit seriously when the drivers who hit cyclists are allowed to keep their licenses. He is reminded of something an EMT professor said in class once: “Don’t call car crashes accidents. It’s not an accident when someone is being careless, distracted, or an a-hole. That’s just someone causing a car crash.”

Until the justice system feels the same way, cyclists need to be diligent in everything they do on the roads.

The crash has affected how Anthony feels about riding his bike in general. “I can’t ride in traffic because I fear getting cut off again.”  He frequently discusses moving from Denver, because he wants to live in a smaller town with fewer people and, thus, fewer cars on the roads. Anthony is seriously considering uprooting his family and moving to Grand Junction, CO, because people tell him that GJ is what Denver and Boulder were like “in the good ole days.” 

While not afraid to ride his bike, Anthony is much more hesitant to proceed on his course when cars pass him now.  “I find myself instinctively using the brakes when a car passes me.  I do not trust drivers to have common sense anymore.” Anthony has greatly altered his route to work. He tries to only use Denver bike lanes as that is a clear lane of travel with solid white lines meant to deter drivers from entering his lane of travel.  However, he still sees drivers ignore this paint and drive wherever they please.  This has led him to do most of his training rides in more rural areas, like the Eastern Plains, or beyond the front range mountains deeper into the Rockies.  This means that Anthony drives his car more just to get to a place where he feels safe riding.  

If Anthony could speak to the driver directly, he would say the following:

“How much time did you save now? You were trying to fly past me in a school zone and bank a hard right turn at just under 30 mph, with your baby in the car! For what? To shave fifteen seconds off your afternoon commute time? You told me you were just trying to drop your baby off and then go back to the school to pick up your kid or something. The exponential growth of your poor time management is astounding.  You didn’t give yourself enough time to do the things you felt you needed to do as a parent, and rushed around in a car trying to make up for lost time. How much time did you lose after you hit me? You lost the time of giving a statement to the police officer that day. You lost the time trying to find a lawyer to defend your indefensible case. You lost the time acting as your own defense in court. You lost the time making a statement to your insurance company for the settlement.  You lost hours of your life trying to get back 15 seconds.  Next time, just wait for me to pass and those lost 15 seconds will save you hours of lost life.”

Anthony wants all cyclists to know to carry underinsured motorist coverage on their own insurance policies and to get their insurance ducks in a row. He also recommends contacting a lawyer right away as the process can be long. “The sooner a lawyer is calling people on your behalf the quicker it will be finished.”

Cyclist Shares Valuable Insight Following Collision

“Bikes for me bring unfettered joy and energy to my life. Over the last three months during my surgery and radiation treatment, if I can even only get out for 30 minutes I find myself renewed and optimistic. If I was a doctor I would write you a script to get out and ride every day.” — Jay

It has been more than two years since Jay Middleton was seriously injured in a collision while riding his bike in Morrison, CO, but he is still recovering from his injuries. Jay is dealing with chronic knee pain and recently received a three-week course of injections to treat the pain. Cyclists who have been injured in collisions often deal with the after effects of their injuries long after their case is settled, the driver is sentenced, or their medical treatment ends. If Jay wants to continue to lead a healthy, active, outdoor lifestyle, he will probably have to get injections the rest of his life.

Riding bikes has been a huge part of Jay’s life and identity for the last 25 years. He has raced on the road, mountain bikes, and cyclocross. He is an avid bikepacker, bike commuter, mountain biker, and has recently been using his bike to raise money for cancer and COVID research. This year, Jay was diagnosed with neck and oral cancer and continued to ride his bike throughout radiation treatment.

On July 13, 2018, Jay was traveling eastbound through downtown Morrison on his road bike. It was late morning, around 10:00 am, sunny, and there were blue skies. Jay was running both front and rear flashing lights on his bike and wearing a fluorescent yellow helmet. Nervous about riding too far to the right, Jay had taken the lane, as dooring is a risk by drivers who are parallel parked along that section of road. He was traveling at the same rate of traffic which was 20-25 mph.

A driver in a Honda CRV facing eastbound was leaving a parallel parking spot and made an illegal U-turn out of the parking spot. The driver’s U-turn cut Jay off causing him to collide with the front left side of the vehicle. Jay and his bike were catapulted over the hood of the car and into oncoming traffic in the left lane. 

Fortunately, the driver coming in the opposite direction was attentive and traveling at a safe speed. She was able to stop and avoided hitting Jay. She then called 911.

Paramedics tended to Jay at the scene. He had lacerations on his knees, hands, and elbows as well as bruising. An MRI later revealed that Jay had a torn meniscus in his right knee. He underwent several months of physical therapy for his knee before he and his orthopedist decided that surgery would be the best way to correct the damage. 

The Colorado State Patrol cited the driver, who admitted fault at the scene, with Failing to Yield Right-of-Way When Turning Left in Front of Approaching Traffic. Since this crash happened before May 29, 2019, it was not yet possible for law enforcement to cite the driver with Colorado Revised Statute 42-4-1402.5, which makes careless driving causing serious bodily injury to a vulnerable road user a class 1 traffic misdemeanor. Since the passing of the law in early 2019, we are slowly seeing law enforcement cite drivers with this traffic violation more often and district attorney offices elevating charges against drivers.  Find out here how to get a serious bodily injury charge filed. 

Jay does not feel that the outcome of the criminal case against the driver was just and fair. The driver had numerous traffic violations and got away with a slap on the wrist.  “Cars can be lethal weapons and using one comes with great responsibility.  When misused by drivers, they should be treated and punished as such,” says Jay.

Here’s what Jay wants every cyclist to know if involved in a crash. He actually made the list shortly after his collision of things he wish he had known:

1. If possible get out of the flow of traffic. Nothing worse than getting hit by a car and then getting run over by one.

2. Call the police.

3. Take lots of photos (your bike, the car that hit you, license plate of the car that hit you).

4. Do not admit fault.

5. Get a copy of the police report, the driver’s insurance information, and the name and phone numbers of any witnesses.

6. Get in touch with a lawyer to discuss your case. I live in the Denver area and reached out to Megan Hottman, aka The Cyclist Lawyer. Before COVID, she provided free monthly seminars for cyclists involved in collisions. Before she became my lawyer, that seminar alone armed me with information that allowed me to rightfully collect full value for my damaged property as well as alert me to several other rights I did not know I had.

7. When claiming property damage, do not forget to include sales tax. That alone netted me several hundred extra dollars because I was on a pretty pricey bike.

8. Seek medical treatment and document your injuries as well as all costs (e.g. medical, travel to and from the doctor, time taken off of work, etc.).

9. Just because you feel better, does not mean you are. I did several months of physical therapy and thought I was good to go. Snowboard season, increased miles on the bike and excessive kneeling at work revealed that my right knee wasn’t healed. So the lesson is, do not sign anything from the auto insurance company until you are 100% sure you are done with your medical treatment. You have three years to settle your case, and this is where a lawyer may prove to be very helpful.

10. Do not post anything about your wreck, your recovery, or anything that deals with your wreck on social media. Ask your friends and family to do the same. Social media content can be used in court. This means if you post something you cannot take it down, because that is just like destroying evidence.

11. Report it to your auto insurance. You often can get reimbursed for some of your medical costs from your own auto insurance even if you are not at fault.

Jay was surprised how hard the driver’s insurance company was willing to work to avoid paying out damages for medical and pain and suffering. At the end of the day, they refused to negotiate in what he felt was a reasonable manner, even though the driver admitted fault. In the end, they paid out more than double what he had asked for on his own. “Megan was able to negotiate a much higher settlement. I think the insurance company was counting on me backing down,” explains Jay.

He was back riding after just a couple of days but with great trepidation. Every car that passed too fast or too close caused anxiety and anger to flare up.  Since the collision, Jay has invested in more brightly colored cycle clothing.  He still runs front and rear flashing lights on his bike. Jay actively participates in People for Bikes email writing campaigns and is a long-time member of the International Mountain Bicycling Association.

We hope that you are never injured in a crash or need to contact an attorney, but feel it is important to share the lessons that our clients have learned following their crash and during recovery. Hopefully, recent laws that provide more protection to vulnerable road users and stiffer penalties will cause motorists to drive more carefully around cyclists! 

-Written by Maureen

How to Get a Serious Bodily Injury Charge Filed

Colorado Cyclists Can Push for Application of New Vulnerable Road User Law in Their Cases

Have you been the victim of a crash after May 29, 2019, involving serious bodily injury (SBI)? If so, here is what you need to know in order to get the charges that the driver will face elevated to Careless Driving Involving Serious Bodily Injury (SBI) to a Vulnerable Road User (VRU).

First, Governor Polis signed Senate Bill 19-175 into law on May 29, 2019, which increases the penalties for careless driving resulting in SBI to a VRU. The bill also provided a definition of a VRU which does include cyclists. Senator Mike Foote and Representative Dylan Robert sponsored the bill which was strongly supported by bike advocates, such as Bicycle Colorado, who worked directly alongside lawmakers to draft the bill.  Bike advocates who pushed for this bill believed it would be an automatic sentence and added tools to district attorneys’ tool boxes in terms of sentencing recommendations/options in addition to assessing points to the driver’s license.  

The new law, C.R.S. 42-4-1402.5, makes careless driving causing SBI to a VRU a class 1 traffic misdemeanor according to Jennifer Tibbitts Knudsen, Traffic Safety Resource Prosecutor with the Colorado District Attorneys' Council. It allows the court to require a convicted driver:

• To attend a driver improvement course.

• To perform useful public service not to exceed 320 hours.

• To pay restitution.

Upon a conviction of the VRU charge, the Department of Motor Vehicles must assess 12 points against the privilege to drive, says Jennifer. 

Second, according to C.R.S. 42-2-1601 (4)(b), SBI is defined as “injury that involves, either at the time of the actual injury or at a later time, a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.”

Next, Jennifer explains that if there are felony charges in cases of careless driving causing serious bodily injury to a vulnerable road user, the following language would be used in the charging documents: 

Defendant unlawfully drove a motor vehicle in a careless and imprudent manner without due regard for the width, grade, curves, corners, traffic, and use of the streets or highways and all other attendant circumstances and the defendant’s actions were the proximate cause of serious bodily injury to a vulnerable road user; in violation of sections 42-4-1402.5(2) and 42-4-1402, C.R.S.

When law enforcement officers write a ticket, both sections (42-4-1402.5(2) and 42-4-1402) of the statute must appear as follows:

Infliction of Serious Bodily Injury to a Vulnerable Road User 42-4-1402.5(2) and 42-4-1402, C.R.S.

Now that we have gone over the law and explained SBI and VRU, what can you as the injured cyclist do to get the new law applied to your case if you sustained serious bodily injury as the result of a careless driver? Here is a guide with steps we recommend in order to get the local city attorney or DA to refile the summons using the new VRU law:

1. You will need to provide police with a signed SBI form from your doctor proving that you sustained SBI. Often, the police officer will ask the ER doctor to sign the form if injuries warrant SBI. Police will sometimes follow up with the victim and ask for provider information or even medical authority. If this is not the case, then you need to contact the police officer/department for a blank SBI form. It will usually have the police letterhead on it. You will need to push for it, as the police department often does not pursue the SBI form once the ticket is written. You may need to get your SBI form signed by one or more doctors.  Once you have the form from your doctor, ask police to reissue the ticket and cite the driver with the new VRU law. Ask police to send you the updated summons and then look up the next court date in the case. To look up when the case is next set for hearing use this link: https://www.courts.state.co.us/dockets/

2. Now that you know when and where the case will be heard, you need to find out which DA is handling the case and get in contact with him/her ASAP. Tell them you do not want them offering any plea deal, and that you want the driver to plead guilty to the VRU charge (and lose their license), or that the DA needs to take the case to trial if the driver refuses to plead guilty to the VRU charge.

3. If the DA indicates any intent to offer a plea deal, like reckless driving at eight points or careless driving at four points, speak up. As the victim, you get to speak up about your wants and desires for justice.

4. Several court hearings/continuances may then take place, moving the case out a few months—this is normal. The driver may elect to hire an attorney to represent him/her. The attorney will discuss the case with the DA and see if a deal can be made.

5. Eventually, there will be a sentencing hearing (unless the DA loses at trial and the driver gets off "not guilty"). You need to attend the sentencing hearing and tell the judge what you want. Usually, you can ask for community service hours, or say you want their license revoked—as a few examples. If you end up negotiating settlements with the driver's insurance company for your bike equipment and bills, etc. then you cannot also pursue restitution as part of the sentence (you cannot double dip).

   Honestly, we care most about the driver's license revocation and a lot of community service. A bike-friendly driver course with Bicycle Colorado is also a priority.

   HERE IS A REAL-LIFE, RECENT EXAMPLE:

   Dan Collier was recently seriously injured in a crash and has been fighting to have the charges against the driver who hit him elevated.  An avid cyclist, Dan has ridden tens of thousands of miles.  He has crashed before, been hurt, and has gotten back up each time. He would spray his wounds with his water bottle, do trailside repairs to his bike, and always ride home.  Dan says that this crash did not seem different until later.  

   On Sunday, September 8, 2019, at about 3:39 pm, Dan left home to ride the Santa Fe Trail north to the Greenland Open Space, do a lap around Kipp's Loop, and return home.  At 5:35 pm, he was on the return trip and stopped at the intersection of Second Street and the Santa Fe Trail in Monument, CO. 

   At the crosswalk, Dan pressed the button to cross the street. The cars to the left of him came to a full stop at the red light, and he was given the go signal by his light. Dan started crossing as a gold-colored Subaru to the right in the distance appeared to be slowing down. As he got halfway across the street, Dan saw that the Subaru was not stopping. He banked hard left to try and get away from him, but it was too late, and Dan was hit. The driver did not slow down at all. Dan is quite certain that the driver was entirely unaware of him until the moment of impact.  The driver made no effort to brake or swerve.

   Dan hit somewhere between the front quarter panel and side mirror. The car grabbed his front wheel, shoved him parallel, and he rode the side of the car until quickly being slapped forward into a sharper left turn by the side mirror.  The bike then kept rotating hard left without him banking with it. He was forced 90 degrees left by the force of the hit, and the bike rotated perhaps 180 left. This wheeled him a few feet away from the car before slamming him onto the pavement.  The driver said that he "took Dan out with his side mirror."
   
   For several minutes after the initial impact, Dan was sitting in the street with the wind knocked out of him, trying to catch his breath.  After he stood back up, Dan really thought that he was going to just ride home. “Shock can do that, and that is what the responding officer saw.  I was not visibly injured, and I might have even said that I wasn't badly injured, and that is why the driver was originally charged with just running the red light,” he says.

   Dan had pain on his right side and under his right arm that very well could be the mirror smacking him followed by the impact with asphalt. He landed on his right side, because that was where all of the injuries were (palm-sized bruise on his right hip, road rash on his right elbow, and fractured ribs on his right side). 

   An ambulance transported Dan to the hospital where he stayed for four days. It was in the ambulance that the pain really started to set in, and Dan realized this time was more serious than any other.  In the ER, he found it more comfortable to stand, so he stood for the IV, walked to his X-ray, and walked to and from the CT. It was almost an hour later when he passed out. Then that night, Dan was convulsing in pain as each of the nine or more rib fractures triggered muscle spasms that fed off each other's pain signals, clamping down tighter and tighter and producing new pain and tighter clamping.

   Police originally charged the driver with "failure to obey traffic control signal," because they did not realize the seriousness of Dan’s injuries. The driver admitted that he had been fiddling with his radio, was not watching, and that was the reason he ran a red light and hit Dan in the marked pedestrian crosswalk. The driver continued for at least 30 feet before stopping.

   After leaving the hospital, Dan wrote to the responding officer for help in getting a copy of the incident report.  Dan felt that the officer’s initial attitude was that his part, in this case, was done. He had filed his report and moved on.  

   Dan had been looking around for a personal injury attorney to help with his case since every aspect was brand new to him.  He says, “I was not interested in the vengeance motivation advertised by some and was turned off by the lack of passion the others had.  Then I found ‘The Cyclist Lawyer’ via an Internet search. Megan Hottman herself was willing to talk to me on the phone and provide a lot of basic information.  This included the reference to the Colorado Vulnerable Road User Law that neither I nor the other attorneys had heard of.”

   Dan went to his next available point of contact since he felt that the officer had washed his hands of the case.  “Monument is a small town, and their website offered the email address of the police chief. I wasn't planning on going that high up, but that was the point of contact I had available, so I sent an email there with an apology in case I was overreaching,” Dan says.

   Quickly thereafter, the original officer called Dan.  He stated that they had never heard of the Colorado Vulnerable Road User Law that Dan had cited. However, he and his sergeant reviewed it and concluded that this new law was entirely applicable here, that the driver would  receive a new summons with the upgraded charges, and they would add this law to their FAQ sheet so that this is more commonly known to their department.

   Monument Police asked Dan to provide them with an SBI statement signed by a physician as part of their investigation. He requested this from the records team at Memorial Hospital and later from his primary care physician, as Memorial Hospital took several weeks to provide him a statement. On November 8, Dan submitted a statement from his physician to Monument Police.  Coincidentally, Memorial Hospital came through that same week with their SBI statement explaining that he had at least nine fractures across six ribs and a hemopneumothorax.

   After Dan submitted the SBI statements, Monument Police assured him that they had issued a new summons and, indeed, charged the driver under the new VRU law. The driver picked up the revised summons.

   The next step for Dan will be to look up the new court hearing date and get in touch with the DA handling the case. He will need to tell him/her that he does not want any plea offer, and that he wants the driver to plead guilty to the VRU charge (and lose his license). Another option would be that the DA needs to take the case to trial if the driver refuses to plead guilty to the VRU charge.   

   Dan’s life is very different now than before the crash. He cannot bike, lift anything substantial, or generally be of much use around the house. He used to race competitively back in the 1990s (before getting married, kids, and job), and biking is still essential to his well-being.  Now, he goes to work and then needs to come home and rest (heating pad and over-the-counter pain relief). On the day of the crash, Dan was out for a 25-mile ride at a vigorous intensity, because that is the minimum that he needs to not feel sick from lack of activity. “Walking around the block just doesn't cut it, and that's about all that I can do now,” he says.

   We will keep an eye on this case and provide updates.

A sample SBI form.

Jeffco DA’s Office Declines To Charge Driver with New Vulnerable Road User Law

By Maureen Massidda, Content & Connections Director

Judge’s Hands Tied at Sentencing Due to Plea Deal

“It’s really shameful that laws were not appropriately applied and sentencing guidelines watered down in this instance.” R. Hill

“People get punished more for hitting other cars than they do for hitting people. Disgusting.” Mc Crowell

“She caused a permanent head injury to a cyclist, and she gets community service? Not enough.” M. Willimas

“As a cyclist who's also been hit, this is frustrating and pisses me off that the purpose of the new law was ignored. Can’t she at least be made to repaint bike lanes or forced to log those hours riding a bike in traffic to hopefully increase her awareness and that hitting a cyclist is a big deal?” D. Miller

“There’s no lesson in that sentence. What I don’t understand is if there is a new law on the books why was the old law used?” P. McCarthy

Outrage, disappointment, and disbelief. Those are just some of the sentiments cyclists are expressing via social media channels after the Jeffco DA’s Office decided not to charge a driver with Colorado’s new VRU law, aka, careless driving resulting in serious bodily injury (SBI) to a cyclist, which by definition is a vulnerable road user (VRU). Instead, the DA’s Office offered the 19-year old driver a plea deal charging her with careless driving resulting in injury, a mere 4-point violation.

The driver walked out of court without losing her driver’s license. She is headed off to vet tech school in Las Vegas, NV where she will be able to keep driving her car around cyclists and other vulnerable road users. She will not have to take public transportation, ride a bike, or walk to get around. Her life will not be impacted like that of the cyclist she hit.

However, every aspect of the cyclist’s life has been disrupted following the crash:  work, sleep, health, training, and social activities.  The cyclist, our very own Megan Hottman, sustained serious bodily injuries to her left knee and a concussion. Her injuries required two MRIs, numerous appointments with specialists, and months of physical and vestibular therapy. She missed time from work and training due to her injuries and could not race the Transrockies Run for which she had been training since January. Doctors diagnosed her with post-concussive symptoms after headaches and nausea forced her to leave work repeatedly. Megan, who had perfect vision before the crash, now wears glasses due to visual disturbances from this collision. Her relationships suffered due to her erratic moods (typical in a brain injury) and inability to process information and emotions. The impact of these injuries is lifelong and will be part of Megan’s life going forward. 

If you have met Megan, you know that the bike is more than an avenue of recreation for her; it is her primary form of transportation. She rides her bike to work, the bank, doctors’ appointments, yoga, and the store. Her car sits in the garage for weeks at a time. She has ridden thousands of miles across the country, including the Midwest, Nebraska, Kansas, Missouri, rural North Carolina, downtown Manhattan in the heart of New York, and all over Colorado, including downtown Denver. Alone last year in 2018, she rode 10,000 miles on her bike.

On the day of the crash, May 29, 2019, Megan was commuting from work to her home on her e-bike, with a stop at the bank around 3:00 pm. Less than a mile from her house, on a road she uses daily, she was doing everything right: riding in the bike lane, wearing a white helmet, in broad daylight, not wearing headphones, looking over her shoulder for traffic, obeying traffic rules, etc. 

Photo taken by Arvada PD Drone

From behind, Megan became aware of a red Subaru approaching and glanced to her left to see the car’s turn signal on as the vehicle drew even right next to her.  Megan saw the driver looking ahead, not to her right, so Megan hit her brakes aware that the driver was about to make a right-hand turn directly in her path. The driver was 100 percent unaware that Megan was in the bike lane to her right.  

Megan was upset but relieved that she had been able to avoid a crash. She was then surprised by a second car immediately on the bumper of the first car. While Megan managed to avoid the first car, she was unable to take any evasive action when the driver of the second car turned right into Megan’s bike. This driver did not have her turn signal on. Megan had no chance to avoid her, and her left arm hit the right side mirror, breaking it off of the car. The bike went right, and Megan fell to her left “highside,” landing on the ground on her left hip and thigh.

Immediately, Megan felt the impact on her left femur bone. Her left forearm hurt from the mirror impact, and both knees also hurt, likely as a result of both hitting the top tube of the bike.  Megan remained on the ground perfectly still. The driver got out of her car, and Megan yelled at her to call the police. She could hear her fumbling for her phone and was saying “I’m so sorry, I’m so sorry.”  Megan yelled back that she had to check bike lanes for cyclists before turning right. 

She could hear people stopping and getting out of their cars coming over to check on her.  One of the first people on the scene was an off-duty EMT. He came over and asked Megan what hurt, did a check of her left hip, and then pushed on the area that hurt.  

In the moments after the crash, something occurred to her that she never thought about in all these years of representing injured cyclists:  “I felt ashamed, embarrassed, alone, and vulnerable there on the ground. I cried. I was aware of five or ten people standing over me.  I could see cars pulling over and stopping and heard sirens approaching. I was aware of the “Scene” taking shape around me. I wanted to disappear. It felt so awful,” says Megan. 

One thing that surprised Megan was how many spectators wanted to move her bike and belongings from the point of impact (POI).  Knowing they were trying to help, she politely declined. Again, and again, and again. She wanted the scene preserved and rightfully so- Arvada PD later brought out their drone to conduct overhead and scene investigation and measurements.  Had either the bike, or the car, been moved prior to that, there would have been no way for them to do their diligence in this regard. (So- note to bystanders, don’t move things at the scene, please, unless instructed to do so by the authorities on scene).

A fire truck arrived and blocked off the road.  Several Arvada PD cars came, followed by an ambulance. Paramedics put her on a stretcher and loaded her into the back of the ambulance.  They took her vitals and checked her leg to see if there was any bruising or a bone sticking out.

As soon as Megan could get her phone, she texted her ortho doctor and set up an appointment for the following morning. Knowing that she had made an appointment, paramedics released Megan from the ambulance. 

Ironically, on that that very day, just a few hours earlier, Governor Polis had signed Senate Bill 19-175 into law which increases the penalties for careless driving resulting in SBI to a VRU. According to C.R.S. 42-2-1601 (4)(b), SBI is defined as “injury that involves, either at the time of the actual injury or at a later time, a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.”

 When local bike advocates and lawmakers proposed this law and got it signed into law, the intent was to revoke the privilege of driving from someone who hits and harms a cyclist, so that they may be forced to ride a bike, or walk, or use public transit to get around for a period of time. “Until drivers lose their privilege of driving, and have to ride bikes or walk to get around, the driving behavior towards cyclists doesn’t change,” says Megan.  Of course the law is also intended to punish the driver, and to cause some mild inconvenience in their life, a mild fraction of the inconvenience and pain the collision caused to the injured cyclist.

The DA has a low burden of proof (BOP) to utilize the VRU law: They need only prove (1) careless driving (same as they would normally do for a four-point careless charge) (2) plus SBI (doctor signs a form saying injuries were serious bodily injuries, a term of art as defined by statute) (3) plus VRU (cyclists are defined as VRUs so this is met automatically). 

The facts in this case are clear in our opinion:

1.  Arvada police cited the driver with careless driving causing injury.

2. Megan’s doctor provided a signed SBI statement confirming that her injuries rose to the level of serious bodily injury. He checked TWO boxes, noting fracture and impairment of the use of the knee.  

3. Cyclists are defined as VRUs, so Megan was a VRU.

Yet, the DA’s Office decided not to charge the driver with the new law or take this case to trial. We take serious issue with that. Megan asked the DA’s Office to elevate the charge against the driver using C.R.S. 42-4-1402.5, the VRU law, which if convicted, would mean the driver loses 12 points on their license, and the Department of Motor Vehicles would revoke their license for a period of time. Instead, the DA’s Office offered the driver the four-point careless charge causing injury as a plea bargain.

Wondering why? This decision was made because DA Office staff members disputed Megan’s SBI despite the SBI form signed by her orthopedic doctor.  He would never put his professional credibility on the line if he did not read the statutory definition of SBI and agree with it. The staff was adamant that if the case went to trial on the VRU charge, they would “not prevail” on the element of SBI with the jury due to some remarks in Megan’s medical records that reference “normal knee.”  This overlooked the other pages and comments about the diagnosed tear in Megan’s knee, as well as the MRI findings which also diagnosed the tear in her knee.  

Due to the lesser charge of careless driving with injury, County Court Judge Harold Sargent was limited in his sentencing options. He did not have the authority or ability to take the driver’s license away.  He could only choose between fines, restitution, community service, or jail (which was not requested here). He ordered the driver to 50 hours of community service (Megan had asked for 200), nine months of unsupervised probation, and required her to take a road safety class. The judge assessed four points to her license.

“Bike Jeffco strongly supported passage of the Vulnerable Road Users Bill. We thought it could help make our streets safer for cyclists and pedestrians. Its desired impact can’t be realized if it’s not applied in cases it’s designed for. ”

— Charlie Myers and the Bike Jeffco Board of Directors

It is disappointing and frustrating that the Jeffco DA’s Office is not on board with using the new law to protect cyclists and punish drivers who hit, harm, or kill them. Just one week before Megan’s case, in another case in Jeffco County, the DA’s Office offered the driver a plea deal. Our client suffered SBI including spinal fractures, a broken shoulder, and damage to his internal organs.  The DA’s Office decided to charge the VRU 12-point, but then offered the 8-point reckless charge to the driver. No license revocation.  No real setback. A mere $100 fine and 100 hours of community service.   

Megan has volunteered her time and energy to train Jeffco Sheriffs, Golden PD, Arvada PD, as well as providing a webinar on cycling law and safety to the DA Statewide Council. She sat on the 1st Judicial District Board and worked for a District Court Judge in Jefferson County.  She lives in Jefferson County, owns and operates a business there, and owns residential and commercial property in Jeffco. 

“I really felt like living and working here and being so involved in this community would count for something,” says Megan.

During sentencing, Judge Sargent addressed the driver.  He reminded her that she was very lucky she had not KILLED Megan, and that if she had, they’d be having a very different discussion.  He told the driver that she was not paying the degree of attention that Megan and other cyclists deserve. He asked how many cyclists have to be hit before drivers understand that cyclists use bikes as transportation and stated that we have to protect a vulnerable group. When addressing the community service he had ordered, Judge Sargent said he wanted the driver to find something meaningful and something that will benefit others in the cycling community. He told the driver that she cannot change what she did, but that she can change the future and have an impact. She can be the person who can tell others how easily cyclists can be hurt or killed.

Unfortunately, we do not believe that the driver’s behavior is going to change with just four points and 50 hours of community service. She will move on and forget all about this event, but Megan surely will not. “I don’t believe in this country we are going to have a change in driving behavior until drivers lose their privilege of driving for a period of time, whether it’s 30 days or six months. Someone who has to get around by bike, or get on the bus, or ride the light rail is going to be really careful how they drive around cyclists. It’s for that reason we have the new law,” said Megan when addressing the Court.

Imagine ten years from now. This driver will likely not recall any of this. However, if she loses her license at age 19 for several months, this lesson will stick with her for a lifetime. Maybe she will even tell her friends and family. And as a result of her losing her license, a lot more people would drive more carefully around cyclists. Driving is a privilege, and she should have lost it.

That is what we want, need, and demand from this county to make cycling safer.

We need DAs to stop giving plea deals to drivers. Charge the full 12-point violation or take it to trial. Period. This is the only way drivers lose 12 points, resulting in their driving privileges being revoked. We have a new, amazing law, and it is not being used.

“A lot of people representing a variety of perspectives worked incredibly hard to craft and pass the Vulnerable User Law. This is a good law and it is very much needed in Colorado. Failure to implement the law undermines the efforts of those who worked so hard to pass it and more importantly, undermines the rights of the people the law is intended to protect. ”

— Pete Piccolo, Bicycle Colorado

This was an avoidable crash. It was not an “accident.” 

Drivers need to be held accountable!  And for the first time ever, we have a new law to accomplish that here, for any crash that occurs on or after 5/29/19.  

 Click here to view 9News’ coverage of the sentencing hearing.

TRANSCRIPT:

(UPDATED: TRANSCRIPT IS POSTED-CLICK BUTTON AT RIGHT). Our request for cameras in the courtroom was denied (because we were not notified of the hearing plan by the DA until 6:00pm the night before, and these requests require 24 hours processing time).

ELECTION 2020:

There are several DAs throwing their names in the ring to run for the 2020 Election of Jeffco’s new DA, now that Pete Weir’s 2 term limits prevent him from seeking re-election.  Stay tuned as we tell you which DA we believe will enforce this law and protect cyclists in 2020 and beyond.  

SUBMIT YOUR COMMENTS:

In the meantime, if you have a comment you’d like to submit to the Jeffco DA’s office, you can send it here: 

https://www.jeffco.us/FormCenter/District-Attorney-40/Contact-the-District-Attorneys-Office-138

Finally — a note from Megan: to those who believe that only pushing for more bike infrastructure is the way, and that focusing on punishment is not effective. First, stop twitter-trolling and go do something productive.  Second, actually get involved doing something, join a committee, donate money to groups like Bicycle Colorado and People for Bikes, attend meetings, vote in city council planning sessions and so on; get off your computer or smartphone and take some demonstrable action (otherwise, we don’t want your opinions). Bike infrastructure doesn’t magically appear. Third- it’s not mutually-exclusive. We can attack bike safety on both fronts, at the same time: put in more bike lanes and protected bike paths, AND also punish drivers who harm cyclists. BOTH.

Nebraska Needs Stiffer Penalties for Drivers Who Injure Cyclists

$100 Fine for Careless Driving Lets Drivers Off Easy 

A driver’s poor decisions and careless driving could have cost Gary Little his life. It could have left a wife without her husband and children without their father. Gary came within inches of dying because a 17-year old driver “decided to get high and drive a 4,000-pound instrument of death,” he says.

It was the night of August 18, 2018, in Lincoln, Nebraska, when the driver of an SUV crashed into him. He was riding south on a bike path around 10:00 pm when the driver going northbound turned into him as he was crossing the intersection. Gary was wearing a helmet and using properly working lights. It was dark, but street lights lit up the area. 

A witness, who was also driving north, stated that the driver of the SUV pulled out in front of her from a parking lot with no turn signals and was inches away from hitting the witness’ car. The driver sped out of the parking lot and turned right onto the next road at about 40 mph with no turn signals. The witness also explained that the SUV traveled so fast that it drifted around the corner. 

Gary was not able to stop quickly enough. He was thrown to the side of the road and landed in the grass after colliding with the SUV. He was unconscious and not moving.

According to the witness, the SUV stopped, and the driver got out and started screaming. She then got back into her car and tried to leave. By this time, the witness and others, who had gathered at the scene, stood in front of the SUV to block the driver from taking off. 

The driver called someone, and another female arrived a few minutes later. She started going through the SUV and grabbing things. She then attempted to run away from the scene. By this time, the police had arrived. The witness yelled at police officers to chase the other female down. When police caught up to her, they found marijuana in her possession.  The witness stated that the SUV driver moved very slowly, appeared intoxicated, and seemed not to know what was going on. 

The witness checked Gary’s pulse. He woke up about four minutes later and was not aware of what had happened. He was taken to the hospital by ambulance.

Gary’s injuries required surgery for a torn rotator cuff in his right shoulder.  Both knees had deep bruising, and he had abrasions to his forehead. 

He went through three months of physical therapy and could not ride his bike for six months.  Now for someone who has been riding bikes for over 45 years, commutes by bike every day, and is a competitive gravel racer, not being able to ride his bike was tough for Gary. His recovery is ongoing, but he says it feels great to be back on his bike!

Citation: Negligent Driving, amended to Careless Driving and Possession of Drug Paraphernalia and Marijuana.

Fines/Penalties:  Total - $149.00. $100 fine plus $49 in court costs for the traffic violation. The driver was assessed four points against her license. 

We reached out to a local DA in Nebraska to help us understand why the driver was not punished more severely. 

First, Nebraska currently does not have any vulnerable road user (VRU) laws on the books.

Second, in this case, the police officer cited the driver for negligent driving. “If a ticket is issued, the cop decides what offense they believe has been committed.  Whatever they put on a ticket is just a recommendation to us. We might disagree and not charge anything, we might add charges, we might charge a less serious offense, or we might charge a more serious offense,” explains the local DA.  

 Rather than going to the City Attorney’s Office, the ticket went to the County Attorney’s Office.  According to the DA, there is no negligent driving charge under state laws. Instead, there is a careless driving charge (Nebraska Revised Statute 60-6, 212), which is the exact same thing except that a careless driving offense adds four points to the driver’s record compared to three points for negligent driving. This is the reason the ticket was amended from negligent driving to careless driving.

 Careless driving under Nebraska law is a traffic infraction rather than a misdemeanor. The maximum fine for a first offense is $100. A second offense within a year can cost up to $200, while a third offense would be $300. The Nebraska Supreme Court has set the waiver fine schedule for any fines that are not set by statute. 

 The DA explained that after the charging decision is made, it gets filed with the court.  He goes on to say that not everyone who gets a ticket must go to court. Most low-level traffic offenses, such as speeding, failure to yield, and expired registration, are given the option of paying by waiver and skipping court. A defendant can still have a trial by telling the clerk that they wish to have their case set for trial.

 However, most people who get a traffic ticket never appear in court.  Once the ticket is signed, no one in the County Attorney’s Office will look at it again unless it is being contested.  

 “In this case, careless driving is a waiver eligible offense.  The fine was preset at $100, and the defendant opted to pay the fine rather than have a trial,” says the DA. The driver was assessed four points against her license. The points are all set out by a schedule in the statutes, so neither the judge nor the prosecutor really have any control over how many points a person gets on their license. The judge can’t revoke a license for a careless driving charge, and the maximum penalty is already being imposed.

 The next step up from careless driving would be reckless driving which requires an element of intent behind operating a vehicle poorly.  “In this case, there was no intentional bad driving, she should have seen Gary but just didn’t,” says the DA. For reckless driving, you usually are looking for speed, location (highway v. residential), weaving, unsafe passing, violating traffic control devices, etc.  Failing to see someone would not rise to the level of reckless driving.

 “The example I often give is if you have someone cleaning a loaded gun and it goes off and hits someone, that would be negligent.  Yes, they shouldn’t have been cleaning a loaded gun, but there was never any intention of putting someone at risk. Compared to a situation where someone is trying to scare a group of people and intends to fire a shot over their heads but accidentally hits someone instead.  There they had the intent to discharge the gun, might not have intended the result, but intended the action. That would be reckless,” says the DA.  

 People often want to draw a distinction between someone who fails to yield and causes serious bodily injury, and a crash that involves property damage.  “As the law sits now, there are no distinctions in the law, all cases where someone fails to yield are treated the same regardless of the outcome (excluding death),” he says.

 This begs the question if the law should treat the situations as different?  Do you punish someone more severely for negligent driving if someone is hurt? Are they any more negligent than someone who wrecks a car? Gary would most likely argue for more severe punishment after what he has been through!

 If you are a VRU in Nebraska, whether a cyclist, pedestrian, scooter rider, road construction worker, etc. and would like to see drivers face harsher penalties for negligent or careless driving, consider one of the following: 

• Become a member of or donate to a bicycle advocacy group such as Bike Walk Nebraska.

• Contact your elected officials. Click here to find out who your legislative representative or congressional member is. Advocate for a VRU law in Nebraska.

• Know the steps to take if you are involved in a crash.

• Contact connect@hottmanlawoffice.com to get a free 3 Feet It's the Law sticker

• Read the laws pertaining to cyclists in Nebraska. 

• Check out the Nebraska Bicycle Guide.