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…

“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.

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

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.

The Trend in Plea Deals Involving Injured Cyclists: Lesser Charges, Lighter Sentences

This ^^.

This ^^.

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.

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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

Arizona Legal System Failing Injured Cyclists

No consequences = No Changes.

With its natural landscapes, bike infrastructure, and perfect weather for year-round cycling, Arizona is considered by many as a cycling paradise. Every year, cyclists head to Arizona to cities such as Scottsdale, Phoenix, or Tucson to enjoy miles of cycling routes and open roads. It is also home to many professional cyclists, endurance athletes, and bike commuters. The conditions are honestly, ideal.

Yet, law enforcement and city attorneys are dropping the ball when it comes to protecting cyclists and holding motorists who injure them accountable. Several of our Arizona-based clients saw the at-fault drivers minimally charged and even more minimally punished with paltry five-hour classes. Some even got the charges against them dismissed!  Drivers are simply not punished severely enough for causing injury to cyclists. 

In 2017, 32 bicyclist fatalities were reported in Arizona with 1,371 cyclists injured. That made Arizona the 5th most dangerous state for cyclists. According to the People Powered Movement, Tucson ranked second and Phoenix fourth as the most dangerous cities nationwide for cyclists in 2015. People For Bikes gives Scottsdale a low score of 1.7, and gives Phoenix a score of 1.5.

Based on our recent experiences, it seems that traffic violations involving cyclists in Phoenix and Scottsdale rarely make it to court, and the fines/penalties are minimal. Drivers may end up getting off with a $250 fine and no jail time. If a motorist seriously injures or kills a cyclist when violating Arizona's 3-foot passing rule (§28-735), the financial penalty would increase to $500 and $1,000 respectively. 

There is no specific statute in Arizona that addresses vehicular manslaughter, and only certain traffic violations may lead to a manslaughter charge if they involve the death of a person while driving. These include driving under the influence, excessive speed, aggressive driving, and racing. (See Arizona Revised Statute (A.R.S.) §13-1103).

Currently, Arizona does not have any laws to protect vulnerable road users (VRU), which in addition to cyclists also include pedestrians, motorcyclists, children, elderly and disabled people.  VRU applies to those groups most at risk in traffic. Additionally, “Arizona is still one of two states that has failed, yet to adopt any prohibition on texting while driving,” according to Arizona-Look Save a Life.

Arizona as a touted cycling mecca, needs to do a LOT more to protect its resident cyclists and the hundreds of cyclists who flock there in the winter for warm riding. Cycling is a profitable subset of tourism for this state, and while bike lanes are very common and prevalent (which is a good start), the state needs stronger, harsher laws and intentional enforcement. It is time for law enforcement, city/district attorneys, and lawmakers to cite drivers properly, enforce harsher penalties, and enact legislation to make cycling safer and protect all VRUs.

Despite serious bodily injuries to our clients, two of the drivers were allowed to take a five-hour defensive driving class, had their tickets dismissed, and received no points or fines. In one case, the driver's ticket was dismissed even before the class was required. None of these drivers even had to appear in court! 

Scottsdale - Our client Ryan Hardy (above) was riding in a marked bike lane around 7:30 pm on February 26, 2019 when he was right-hooked at a T intersection where he had the right of way. He was riding with a bright front light and a flashing rear light and was wearing a helmet and a kit with reflective bands. The driver told police that he “didn’t see the man on the bike” when he turned.

Instead of waiting behind Ryan to safely make it across the intersection, the driver accelerated, passed Ryan, and then made a right-hand turn directly in front of him. The impact of the collision threw Ryan in front of the car into the intersection. He was transported to the hospital for his injuries.

Citation: 

Violation of 28-754 - Unsafe Turning Movement to the Right 

Fines/Penalties:  

A minor traffic violation in which the driver took online traffic school ($200), and all charges were dropped. 

How does Ryan feel about the outcome? In no way, shape, or form does he feel that the outcome was just or fair. “It’s pathetic and insulting because about six months later, I still have several problems on a daily basis and still cannot work out in almost any capacity. I still have to see physical therapists, concussion specialists, neurologists, a therapist, and have never taken so many prescription drugs to control problems in my entire life,” he says.

Ryan believes that a law similar to the strictest DUI laws in the country, applied to making any and all contact with a person/cyclist while driving, could change a lot. Like those extreme DUI laws, major monetary consequences, a very high level of culpability, and, maybe most importantly, the highest/strictest level of enforcement of this law and its consequences would help to bring about change.

If he had the chance to talk to the driver about cyclists and safety, Ryan would point out that the majority of outcomes when hitting a person/cyclist with a car is that a human being is killed. He believes that most collisions with cyclists could be avoided by simply slowing down and or waiting a mere 1-30 seconds. “I ask people who think those few seconds are so important, ‘Are you willing to knowingly kill somebody to save that time or just drive faster?’”

Scottsdale again - Our client Eric Marcotte (above) was knocked unconscious on November 20, 2018, when a driver failed to yield the right of way at an intersection and drove straight into him. He was thrown from his bike and landed on the roadway. Eric was also riding in the bike lane and had the right of way. 

Eric is a professional cyclist who rides between 350-500 miles per week. He knows this stretch of road and area very well, having ridden it thousands of times over the last decade of living in Arizona. At the time of the collision, he was wearing his team sponsor’s kit, which is a blue and white combination, and was riding with blinking lights. The driver claimed that Eric “just came out of nowhere.”  Eric maintains that the driver had a visible line of sight looking south well over a mile with the road being straight.

Citation: 

Violation of 28-773, Failure to Yield Right of Way

Fines/Penalties:  

$250 fine and defensive driving class for the driver, which he and his lawyer argued against for months before accepting.

Eric wants motorists to understand how important it is to be aware and attentive while taking the responsibility of driving a vehicle and believes that the system enables motorists to be negligent. “Drivers will have someone fighting for them to not be responsible. So that enables poor drivers and doesn’t help change actions,” says Eric. 

He wishes he knew how important it is that police officers and district attorneys do their job as well. He says they need to step up and set a precedent by setting the consequences for negligent/inattentive/distracted drivers in a way that has consequences great enough to change actions. Suspending licenses, implementing substantial fines, as well as raising insurance rates will make motorists more aware—a $250 fine will not.

Eric recommends riding with a camera because it can keep everyone accountable. “Then you will see how drivers treat cyclists—you can keep compiling those clips and send/share to law enforcement to show them what’s happening—and will also show you, as a cyclist, are following the law.”  

Phoenix - Our client Melissa Lemke, was out for a ride on her bike on March 10, 2019, around 11:30 am when she was struck by a driver who failed to yield to her at a four-way stop. She was wearing a white helmet and her cycling kit which was green, white, and black. It had high-visibility striping on the legs and high-vis patches on the front and back of her jersey. 

Melissa had stopped at the intersection, yielded to the driver on her right and then proceeded into the intersection once that car had passed through. This is when she was struck by a second vehicle also coming from the right who failed to yield. Melissa’s injuries included a broken elbow and a broken left wrist that required surgery. A large plate was put in her left wrist, and she had to wear a splint for her broken elbow. At first,  Melissa was dependent on her husband for almost everything: getting dressed, bathing, personal hygiene, preparing food, etc. Even now, nearly six months later, her left wrist often aches and many actions of daily living incite burning and pain in her right wrist. Melissa ordered a new bicycle but had thoughts about returning it and not riding again.

Citation: 

Violation of 28-773, Failure to Yield Right of Way

Fines/Penalties:  

Driver's ticket was dismissed by going to traffic school.

That’s right! The ticket was dismissed because of the type of ticket he was given: Failure to Yield Right of Way.  The driver now has a clean driving record while Melissa continues to deal with the physical impact of the crash. Even though the police officer came to the hospital and eventually learned that Melissa needed surgery, the driver was given a ticket that could be dismissed by attending traffic school, not a ticket that indicated he had caused serious bodily injury to Melissa from which she has not yet completely recovered.  

When she first learned of the ticket dismissal, about a month after the crash, Melissa was truly devastated.  Up to that point, she had taken a small comfort in knowing that the driver incurred a serious consequence for his actions. Finding out that the driver was able to wipe his driving record clean, while she was still seeing a surgeon and a physical therapist for her injuries, was shocking. 

“This dismissal speaks to the lack of protection we cyclists have on the road. If drivers are not penalized in a meaningful way for running down a cyclist, we are simply moving targets out there. I really don’t know when or if I will fully recover, and the driver does not even have a black mark against his driving record,” says Melissa.

She wishes cyclists knew how they may have to start fighting for their rights at the scene of the crash and that they need to know the laws so they can ask the right questions. She also wishes that she had been able to take photos and had thought to record the driver saying over and over that he did not see her. “I wish I would have questioned the officer about the type of ticket, but I did not know he had choices to make.  I thought he was at the hospital verifying my injuries so he would have evidence to support a serious charge against the driver,” says Melissa.

She thought she could depend on the police. Although she was conscious after her crash, many cyclists are not or are so injured that they cannot not possibly stand up for themselves at the scene.  “We should be able to depend on law enforcement to protect both drivers and cyclists,” she says. 

So, what can you do to bring about change? Here are some suggestions:

  • Get involved with a bicycle advocacy group (PeopleForBikes, either at the national, state, or local level).

  • Contact your local state legislator to advocate for laws to make cycling safer.

  • Know the laws in your state, especially those pertaining to Vulnerable Road Users.

  • Support cyclists who have been injured by showing up at the driver’s sentencing hearing.

  • Talk to your friends, family, and cyclists about your experiences or close encounters with motorists. Spread the word about how to make cycling safer.

For more information about cycling laws in Arizona and municipal codes for Phoenix, Scottsdale, and Tucson, visit our website. Would you like to get involved in Arizona bike advocacy, specifically? Then please consider joining local groups working hard to make positive changes, like the Rob Dollar Foundation, and Look Save a Life Arizona.