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:
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/
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.
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.
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.
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.