The Scariest Day of My Life

A Long Road to Recovery

Delores Marquez fell in love with cycling several years ago. It was the one thing that she did for herself, and it made her feel good. She started out very slowly and admits that she was a bit timid at first.  Delores always had a fear of getting hit by a car or having a serious crash. She had never ridden outside of bike lanes or trails. Many times, Delores would put her bike in her car and drive to the trails to prevent being close to cars. 

Lately, though, Delores had started feeling comfortable riding in her neighborhood in the bike lane, because it had recently been upgraded. The bike lane leads directly into trails that Delores used for all of her rides. She was thrilled because she felt extremely safe and enjoyed the beautiful ride through her neighborhood.

She became more confident riding through intersections. In the past, Delores would get off her bike and walk across the street. Now, she felt more secure staying on her bike and riding through intersections when it was safe.

Cycling also supported charities dear to Delores and causes such as Bike MS: Colorado 2020, a fundraising ride to benefit people affected by Multiple Sclerosis. Delores has raised close to $650.00 in donations this year and signed up for the MS150 in June 2020. She was excited for the ride and training hard so that she could join her company’s team at Johns Manville.

Just as Delores started gaining confidence and racking up the training miles, she was seriously injured when a motorist ran a stop sign at an intersection where she had been riding in the bike lane. Although Delores is hopeful that she will be able to ride the MS150, her injuries and pain may keep her from doing what she loves. “I pray I can do it as I haven’t had much training and the pain from my injuries makes me very sore when I do get on an indoor bike,” says Delores. She has only ridden her bike outdoors about six times since the day of the crash.

“May 28, 2018 was the scariest day of my life. Daily, I wonder how I was saved from this near-death experience,” she says. The crash happened at 9:40 am in Denver at W. Dartmouth Avenue and S. Raleigh Street. Delores was going southbound on S. Raleigh Street and had just stopped at a four-way stop. Another driver stopped at the same time as Delores and waved her to continue on. Delores started to pull forward on her bike when the driver of another car traveling eastbound on W. Dartmouth, who was upset that he had to wait, swung around around the first car, ran the stop sign, and crashed into Delores. 

The driver, who was traveling eastbound on W. Dartmouth took the right of way and struck Delores with such force that her body and bike flew directly onto his car hitting  the driver’s side window which caused it to shatter. Her body then ripped off the driver’s side mirror before landing on the road all while still clipped into her bike.

“I can’t explain in words the terror I felt when I knew I was going to get hit and there was nothing I could do about it. I screamed for the driver to stop but he wasn’t looking at me. My first thought was how do I prevent myself from going underneath the car. I didn’t want to leave my children without a mother. All I could do was pray,” recalls Delores.

She does not know how many times her body and bike hit the car.  As soon as her head hit the window and the glass shattered,  the car sped up and she kept getting hit. Delores thought it was never going to end. 

“When I did land, the pain that I felt was indescribable. I screamed out for help. I remember thinking, at the minimum, I am paralyzed and will have brain damage. Going in and out of shock I don’t remember much after the crash due to the pain radiating through my body. I had such fear running through me thinking about what my life and my family’s life was going to be like. I just lay in the street, and there was nothing I could do but be at the mercy of God and medical help,” she says.

Delores was transported to Swedish Hospital by ambulance complaining of severe back pain.  She had a broken tailbone and a fractured sacrum.  Her hips and thighs were really sore.  Her ears were ringing.  She could not turn her neck and had a mild concussion.  Delores had cuts and bruises all over her body.

The driver stayed at the scene. Denver Police initially cited him with Failure to Yield Right of Way at a Stop Sign, C.R.S. 42-4-703(3). A second charge of Careless Driving Resulting in Injury, C.R.S. 42-4-1402(1),(2)(b) was later added. The driver pleaded guilty to the latter charge and was ordered to complete 80 hours of community service and pay $319.50 in fines and fees. The Failure to Yield Right of Way charge was dismissed.

The outcome of the criminal case does not feel just and fair to Delores at all and surprised her. One and a half years later, she is still suffering, while the driver only had to do community service. “Careless driving causing bodily injury should have been serious bodily injury. I know his sentence is not enough to deter him from doing this to someone else or change his driving behaviors. He also had a prior record that included traffic violations. This was not taken into consideration,” she explains.

Delores has a long recovery ahead of her. She does not know when or if she will ever be physically, mentally, and emotionally pain free. The crash changed her life forever and that of her children, too.  “I don’t know what the future holds, but I am blessed to be alive and walking,” she says. 

Following the crash, Delores had glass and asphalt all over her body. She could not talk at the scene. When paramedics put her on the spinal board, all of the glass and asphalt became embedded into her body. 

The crash took her independence. She became fully dependent on medical help and devices for the very basic needs such as using the bathroom, getting out of bed, taking a shower, getting dressed, walking, sitting, driving, sleeping, and hugging her children. Essentially, any type of movement caused severe pain. No type of medicine helped with the pain. Everything she did required some type of medical accommodation.

Delores has had sleepless nights due to the pain, nightmares, and flashbacks. Every time she hears a siren, gets to a stop sign or a red light, or sees a cyclist, she is frozen in fear; fear that she is going to get hit or hit someone. This is the kind of fear that will never go away. She has daily headaches/migraines, cognitive and memory issues, and skull pain. 

Her entire 2018, following the crash, was taken from her. Delores was unable to participate in any activities that required movement. She had to cancel dozens and dozens of activities with her children, activities that Delores and her children had planned for months and years. 

As a board member of her company’s volunteer program, Delores oversees more than 30 volunteer events that serve hundreds of people in need. She had to find help for these activities that she normally leads for her company. This is her passion, and it was taken from Delores. 

She had to rely on her children and family to be her caregivers, and that made her feel sad inside because they should have been enjoying their summer, activities, and school.

Delores is at some type of therapy or doctor’s appointment each week. She has missed an immense amount of work which will continue through the healing process. Her company has been very understanding and accommodating, but she feels she has let them down. 

The one thing that Delores wishes she had known before the crash and now wants cyclists to know is to make sure they have enough insurance coverage on their auto policies.  “I wish I would have had medical pay on my auto insurance. I also wish I had higher limits,” explains Delores. She encourages cyclists to review their insurance policies to make sure they are fully covered in the case of a crash. Please check out this post on our website that explains what insurance you need as a cyclist. You will find out about medical benefits (MEDPAY) and uninsured motorist/under-insured (UM/UIM) coverage. It also discusses your options for insurance coverage if you do not own a vehicle. 

Delores is still in the process of healing and doing a lot of medical therapy to try to get to a place of manageable pain. Her goal is to get back on the bike without fear. In addition, she wants to be a support system for someone who has been injured in a crash and help them through the process mentally, physically, and emotionally.

“Many victims of crashes don’t get the appropriate healing and many just give up riding,” she believes. 

Delores also wants to be more involved in advocacy groups in order to be part of the change. She is already off to a great start. Delores asked Megan to speak to company employees at Johns Manville to give her bike safety presentation. 

This past February, Delores also testified in front of the Senate Judiciary Committee at the State Capitol in favor of the bike lane bill. “I thought I would be safe riding in a bike lane because the city put them there for us to ride vs. the traffic lane. If we are going to continue getting bike lanes, then the city needs to protect us in those lanes. Motorists have to watch out for the cyclists,” she said.

“I want to empower law enforcement, and I want motorists to know that they will be cited if they don’t yield to cyclists who are lawfully riding in these lanes in Colorado.” 

This year’s Bike MS: Colorado 2020 is scheduled for June 27-28. Delores is taking her training indoors for now and doing Zwift workouts. She really wants to ride in the MS150 ride for all of the people with MS as she knows several who are suffering from the disease.

Delores also sees it as a personal challenge to get back on the bike and is determined not let the crash take riding away from her. 

JUST last weekend she rode 52.67 miles -she was on roads with cars nearby- and she said she’s one step closer to conquering her fears and putting this behind her!

Delores, we are so proud of you, and wish you all the best and are rooting for you!

Yield To Bicycles In Bicycle Lanes - Law Takes Effect on July 1, 2020

Help Us Spread the Word!

Senate Bill 20-061, also known as the bike lane bill, is now law in Colorado and takes effect on July 1, 2020. Signed into law by Governor Polis on March 20th, 2020, C.R.S.42-4-714 requires motorists to yield the right-of-way (ROW) to a bicyclist in a bike lane. It also creates a new traffic offense for failing to yield to a bicyclist or other authorized user in a bicycle lane.  Failure to yield will result in a class A traffic offense and is punishable with a $70 fine and three points assessed to the driver’s license.

According to Colorado Revised Statutes 42-1-102 (10.3), a bicycle lane is defined as “a portion of the roadway that has been designated by striping, signage, or pavement markings for the exclusive use of bicyclists and other authorized users of bicycle lanes.”  It is important to note that bicycle lanes do include an intersection if the bicycle lane is marked on the opposite side of the intersection. So yes, motorists must definitely yield to bicyclists riding in the intersection.

By law, bicyclists in Colorado must stop at intersections where there is a stop sign or stoplight regardless whether there is a bike lane or not. Only Aspen, Breckenridge, Dillon, Thornton, and Summit County have adopted the so-called safety stops in Colorado. The safety stop, also known as the Idaho stop, rolling stop, or stop-as-yield, allows cyclists to treat a stop sign as a yield sign, and a red light as a stop sign. It is up to each municipality to decide whether to adopt Colorado's stop-as-yield legislation.

If a motorist fails to yield to a bicyclist or other authorized user in a bicycle lane and the result is a crash, the motorist should be cited with careless driving, a class 2 misdemeanor traffic offense, and punished as described in C.R.S. 42-2-1402 (2)(a).

Furthermore, if a motorist fails to yield to a bicyclist or other authorized user in a bicycle lane and the result is bodily injury to another person, the motorist should be cited with careless driving, a class 1 misdemeanor traffic offense, and punished as described in C.R.S 42-4-1402 (2)(b). 

Prior to this law, there was nothing on the books in Colorado to make it mandatory for motorists to yield to cyclists in bike lanes. We needed legislation that placed the obligation to yield ROW squarely and firmly on motorists about to turn across a bike lane or at an intersection where a bike lane exists. “It has always been my belief that a motorist must yield to a cyclist in a bike lane before turning into the bike lane or crossing through it,” says Megan. 

After handling bike cases for ten years, as well as having a personal interest as the result of her own crash, Megan saw a need for a law to protect cyclists in bike lanes. 

Last fall, Megan reached out to Senator Mike Foote, who in 2019 sponsored Senate Bill 19-175  to protect vulnerable road users, including cyclists. Megan expressed her concern to Senator Foote that there were no laws in Colorado to protect cyclists in bike lanes. Senator Foote, a cyclist himself, agreed. 

Both Megan and Senator Foote also felt that there was an uneven application of the law statewide when it came to how/if drivers are cited. Sometimes the driver gets cited, sometimes the cyclist gets cited, sometimes nobody gets cited. Senator Foote said the goal of this bill was to clear that up.

Hottman Law Office has seen law enforcement and insurance carriers investigating bike lane crashes in varied and inconsistent ways. We have heard crazy arguments such as “Even though the cyclist was riding lawfully in the bike lane,

• They were going too fast for the conditions (even though well under the speed limit).

• They were not dressed brightly enough (even though it was broad daylight and they had blinkie lights on).

• The cyclist still should have made eye contact before proceeding straight.

• The car made it to the intersection first, so it is the cyclist’s fault.

• Since traffic was stopped to the left of the bike lane, the cyclist should have stopped as well.

• Cyclists should have to anticipate and yield to cars turning right across the bike lane to access the driveway.

• The cyclist should have anticipated they would be overtaken.”

Cyclists are encouraged to use bike lanes instead of riding on sidewalks. They are there for safety reasons. Cities all over Colorado are adding bike lanes to make cycling safer.  In 2017, Denver voters approved a 10-year, $937 million bond, which is called the Elevate Denver Bond Program, to improve Denver’s infrastructure. The program dedicated $18 million to the design and construction of 50 miles of neighborhood bikeways and protected bike lanes, so-called high comfort bikeways.

Unfortunately, the fact of the matter is, cyclists are often injured or killed while riding in the lane that is actually supposed to protect them. 

To add insult to injury, cyclists are often blamed or even cited for causing a crash in the bike lane. There are near misses happening all over the state. Senator Foote has been the victim of those near misses several times. Drivers will accelerate in order to make the right-hand turn, so that they do not have to wait for the cyclist to get through the intersection.The driver misjudges how fast the cyclist is going and cuts off the cyclist. The cyclist has to brake really fast and may end up falling off the bike, or the cyclist runs into the car. 

On Monday, February 3, 2020, Senator Foote, Megan, several of our former clients who had been hit in the bike lane, law enforcement, Bicycle Colorado, AAA Colorado, as well as members of the Colorado cycling community testified in front of the Senate Judiciary Committee about the need for SB20-061 to make cycling safer in Colorado. 

One of those cyclists hit while riding in the bike lane was Delores Marquez. She was riding in her neighborhood on her way to a bike trail when a driver ran a stop sign. Delores landed on the hood of the car, and her head hit the windshield. The driver accelerated, and Delores’ body continued to be hit by the car. She had a broken sacrum and tailbone, a severe concussion, and several other injuries. Delores went through two surgeries and almost lost her life due to complications during one of the surgeries.

“I thought I would be safe riding in a bike lane because the city put them there for us to ride vs. the traffic lane. If we are going to continue getting bike lanes, then the city needs to protect us in those lanes. Motorists have to watch out for the cyclists,” she said. “I want to empower law enforcement, and I want motorists to know that they will be cited if they don’t yield to cyclists who are lawfully riding in these lanes in Colorado.”

Dennis King was also hit while riding in a bike lane. As a retired law enforcement officer and now a part-time campus police officer at the Colorado School of Mines, he stated that passing the bill into law would help law enforcement officers cite drivers correctly.

“The bill itself, I think, would be a valuable tool as an officer to give us something to do, that when we get into these encounters between a car and a bicycle, you would have a new option, a new tool. You’d have something we didn’t have before,” he said. 

Skyler McKinley, Director of Public Relations and Government Affairs at AAA Colorado, testified on behalf of AAA in support of the bill. He explained why both motorists and cyclists should want the bill, as it clears up what is an oversight in the law.

“It clarifies how bicyclists and motorists are required to act when bicycle lanes are present. Specifically, it gives drivers more information about what they are supposed to do when they see a bicycle lane. They don’t have that information right now, and that’s what creates conflict, and it creates tension,” explained Skyler Mckinley.  “That oversight has really burdened drivers at the safety expense of people on bicycles.”

Teri Vogel, whose husband Chuck Vogel was hit and killed by a driver on July 4, 2019 while riding his bike, encouraged lawmakers to pass the bill due to the need for clarity for law enforcement. Terri advocated not only in support of the bill for bicyclist safety but also for motorist behavior.

“I feel that if there are laws put into place and guidelines that help both the motorist understand their duty, their ownership, their responsibility while also helping law enforcement officers know how to act and what to enforce, then everybody comes out better.”

The bill passed with a vote of 3-2 in the committee and then in the Senate.

On February 20, 2020, we were back at the State Capitol testifying, this time before the House Judiciary Committee along with the bill’s co-sponsor Representative KC Becker. It passed 11-2 in the committee and then passed in the House.

Now, we are asking you to spread the word about this new law. Tell anyone and everyone, even if they are not cyclists, because, most likely, they are motorists who need to know! It is time to educate your neighbors, co-workers, family, and friends. If you have a teenager who is learning to drive, let them know that they must yield to bicyclists in bike lanes. If you know a law enforcement officer, update them on the new law. Share the news to your social media sites. Let’s get the word out!

Be Part of the Change - Become a Bike Advocate!

Everyday People Can Affect Change in Their Community

Amy Kenreich has not always been a bike advocate. In fact, she says that she fell into bike advocacy almost by chance in 2017 when she helped organize a bike rodeo at her childrens’ elementary school. The rodeo was a success with both kids and adults showing up to have fun on their bikes. This got her thinking. Why weren’t more people riding their bikes to the grocery store or to a coffee shop on a regular basis? 

About this time, a friend of Amy’s encouraged her to apply to the Mayor’s Bicycle Advisory Committee (MBAC). Amy felt that Denver had some problems to solve with its bike network, and that family biking was under-represented on the committee. This led her to apply, and she now serves on the committee. Amy is advocating for change to make cycling safer in Colorado and has been a strong supporter of adding protected bike lanes to S. Marion St. Parkway.

In 2017, Denver voters approved a 10-year, $937 million bond, which is called the Elevate Denver Bond Program, to improve Denver’s infrastructure: namely, roads, sidewalks, parks, recreation centers, libraries, cultural centers, public-owned buildings, health and safety facilities. The Elevate Bond Program dedicates $18 million to the design and construction of 50 miles of neighborhood bikeways and protected bike lanes, so-called high comfort bikeways. The S. Marion St. Parkway High Comfort Bikeway project is one of 500 projects included in the bond program. It will add a protected bike lane on S. Marion Street from E. Bayaud Avenue to E. Virginia Avenue. South Marion St. Parkway links to other bikeways (Downing St Path, Cherry Creek Trail, Washington Park Loop, E Exposition Ave, S Franklin St), provides routes to schools (Steele Elementary, South High School, DU), and makes parks accessible according to the City and County of Denver. 

A Denver Regional Council of Governments (DRCOG) survey of Metro-Denverites (2018), concluded that 59 percent are interested in riding their bikes on Denver streets but are concerned. However, 75 percent indicated that they would ride a bicycle if they had the option of a network of high comfort bikeways according to the survey results. A high comfort bikeway includes a horizontal buffer, a vertical element such as flexposts or planters, and high visibility markings of conflict areas such as intersections. The protected bikeways provide a buffer between the cyclist and passing traffic.

Studies show that protected bikeways have many advantages. Among them are:

• Reducing/eliminating dooring issues

• Providing greater safety, reducing number of collisions, resulting in fewer injuries

• Reducing/eliminating parking and loading conflicts

• Promoting more biking and less driving

• Reducing traffic congestion

• Boosting economic growth

Amy had a difficult time understanding why anyone would oppose a protected bike lane, especially in front of an elementary school. She lives four blocks away from this project and often takes her kids to the playground at Steele Elementary. She also rides S. Marion Street Parkway to reach the Cherry Creek Trail. 

When Alexis Bounds was struck and killed, it made Amy mad and terrified. “Because I have been on the MBAC and because I know about Vision Zero, I just couldn’t sit by and do nothing,” she says. 

First, she attended a meeting where discussions were held about the protected bike lane on S. Marion Street Parkway. “Unfortunately, the first public meeting turned into an ‘us vs. them’ debate between neighborhood bicyclists and residents who live in the tower apartment buildings at the base of S. Marion Street Parkway,” she says.

The arguments that Amy heard against the S. Marion Street Parkway Bikeway were: 

• It is a beautiful street, and I think the protected bike lane will ruin that. 

• I think it is fine the way it is (even after Alexis’ death).

• It could interfere with Steele Elementary school loading.

• Marion has a historic designation, and it is against those guidelines to put in vertical separation.

• I think this will make cyclists go even faster, and one of these days they are going to run over my elderly mother.

• I think it will interfere with loading at my building.

• I think it will prevent emergency services from accessing my building.

Amy says that it was especially frustrating to keep up with the mis-information: 

• But cyclists break the law! (Actually cyclists and drivers break the law at the same rate.)

• “Our” street is perfect the way it is. (No one person owns the street in front of their home.)

• It will lower my property value. (False, according to the National Association of Realtors)

• It will remove parking. (No plan ever included removing parking.)

Soon after, Amy received an invitation to meet with District 6 City Councilman Paul Kashmann. In preparation for their meeting, Amy conducted an experiment at the Washington Park playground. She took her kids there along with some paper and markers. While they played, Amy spoke to parents and caretakers about the planned protected bike lane. There was an overwhelmingly positive reaction to the project. She left the playground with letters from parents and drawings from children.

Amy brought some of her favorites to Kashmann to illustrate the support for the project and also to highlight the obvious—who this protected bike lane was really going to protect. “In my opinion, the voices opposed were forgetting about some of our most vulnerable road users—children trying to get to school,” explains Amy. 

When she learned that there was a petition circulating against the project, Amy decided to reach out to the person orchestrating it. She met with the concerned neighbor in her home, and together they watched the street below from the woman’s balcony near the top of the north tower. As the neighbor pointed out bicyclists who rolled through the stop signs, Amy also saw cars roll through them without stopping. Her goal was to listen to her nieghbor. “I truly thought that if she met me—one of those cyclists she described as irresponsible—and if I listened to her, that she would see the humanity of the issue at hand.” 

Amy also wanted to make sure she heard and understood the neighbor’s perspective. If nothing else, this was an opportunity for Amy to learn where she was coming from and correct any inaccuracies. 

Over the summer, Amy met one-on-one with more people opposed to the project and joined a stakeholder meeting held by the Department of Transportation and Infrastructure (DOTI). She spoke to many more people who were in favor of the project. She begged each one to come to the next public meeting.

As time went on, Amy got more and more involved. She had the opportunity to speak to one of the local news stations about the project. Amy rode her two children over to the Steele Playground, and she and her friend, Tenly Williams, told the reporter how excited they were for the students who want to bike to Steele Elementary and for all the commuters who would ride through this area to reach the Cherry Creek Trail path. The majority of students at Steele live within a 1.5 mile radius of the school. 

Amy and fellow bike advocate Adam Meltzer were invited to speak at the East Washington Park Neighborhood Association meeting. They put together a one-page handout that collated the major project info and corrected the “fake news” floating around about the project. Her goal that night was to provide facts and answer questions. The short presentation turned into a 2.5 hour question/answer session.

On the morning of Alexis’ death, Amy was part of a Denver Streets Partnership video that was made to promote the benefits of the project. “I was in shock 24 hours later when I returned to S. Marion Street to talk to a couple of news stations about the crash,” says Amy. The petition organizers were on the scene, too. Amy’s message was quite different from theirs. One of them told a reporter, “I just don’t think they need that protection” while standing on the corner where Alexis had been killed.

The next day, Amy got an email from some of the petition organizers explaining that if only the city would put in a stop sign, this tragic “accident” could have been prevented. At that point, Amy had to ask them for some space. It was more than she could handle. 

Later in the fall, Amy presented a quick update at the Steele Elementary PTA meeting. She did not get many questions, and it seemed that most people either did not have a strong opinion or were content with the project plans. 

Finally, with the help of Tenly Williams, Amy designed some flyers advertising the second public meeting and sent them out to other bike advocates to place on bikes throughout the area. 

Early in November 2019, the city held a second public meeting about this project. The design was at 60 percent at that time, and they again collected feedback from attendees. The room was full; this time the crowd included a majority of people who were in favor of the project. The city is currently finalizing the design and construction is planned for 2020. 

Amy encourages people in Denver to follow the Bicycling in Denver page. For a list of upcoming public meetings, check out News and Updates. “One of the best things you can do is attend these meetings and make your voice heard,” says Amy. Another way you can help is to submit feedback on the same site. DOTI really does read and tally up all comments that come in on a project. For the S. Marion St. Parkway Bikeway project, the city showed a slide of all the types of feedback that came in, and it clearly showed that the number one priority was the safety of bicyclists and pedestrians. “Your voice matters, and it doesn’t take much time to make sure it’s heard.”

Another site to watch is the Denver Bicycle Lobby. They post the Denver bike lane public meeting dates on their site and also host meetups and organize efforts to support bicycle advocacy in Denver. 

“I have learned quite a bit working on the Marion project and plan to use that knowledge to help other communities make their streets safer for vulnerable road users by supporting similar projects.”

Bike lane bill: senate judiciary committee

Today was the first of what we hope will be many steps in the passage of this bill.
The committee passed it 3-2 after many of our clients testified about having been hit in bike lanes and why we need this bill. We also heard from bicycle advocates, a representative of AAA Colorado, who said motorists need this law as well (because clarity helps combat confusion!), and a young man from Longmont who was hit in a bike lane and THEN received the citation for it.

It was a hugely successful afternoon - the first of many steps, but one that gave us tremendous hope!

Also , can we talk about how gorgeous this building is ??

More Protection for Cyclists in Bike Lanes

Lawmaker Proposes Legislation - Cyclists Advocate for Protected Bike Lanes

On Monday, February 3, 2020, Senator Mike Foote will address the Senate Judiciary Committee about legislation he is sponsoring to require drivers to yield to bicyclists in bike lanes. Senate Bill 20-061 will make it possible for law enforcement to cite drivers who fail to yield to a bicyclist in a bike lane. Failure to yield would result in a class A traffic offense and would be punishable with a $70 fine. The law would take effect on July 1, 2020, if passed.

If the driver fails to yield to a bicyclist in a bike lane, and this results in a crash or in bodily injury, then this is considered careless driving and punished under the careless driving offense.

Senator Foote also sponsored SB19-175 (Serious Bodily Injury Vulnerable Road User Penalties) in March 2019 which was then signed into law by Governor Polis on May 29, 2019. That same day, Megan was seriously injured when a 19-year old driver crashed into her while she was riding in a bike lane in Arvada. (More HERE).

After handling bike cases for ten years, as well as having a personal interest as the result of her crash and her investment in bike advocacy/activism, Megan saw a need for a law to protect cyclists in bike lanes and to give law enforcement something to work with when it comes time to cite a driver who hits a cyclist riding in a bike lane: “It has always been my belief that a motorist must yield to a cyclist in a bike lane before turning into the bike lane or crossing through it,” says Megan. 

Last year, Megan reached out to Senator Mike Foote and expressed what she saw as a really big hole in the law, not just in Colorado but in most states, where we have the addition of bike lanes for cyclists to use but no laws to protect them.  

Senator Foote agreed, so he and Megan partnered to draft SB20-061. She will be at the Capitol to speak to the Senate Judiciary Committee about the need for this bill to be passed into law to protect cyclists. Alongside her will be Ali Clerkin, who was hit by a driver on May 9, 2016, while biking in the bike lane on Marion Street at E. Bayaud Avenue. It was around 8:00 am, and Ali was wearing a helmet, normal street clothes, and white athletic jacket, making her clearly visible. The street curves to intersect with Downing Street and the bike lane follows this curvature. 

Ali was following this curve of the road in the bike lane; there is also a dotted line where cars can cross over to continue straight to a smaller intersection.

It was at this point that a pick-up truck went through the dotted bike lane line to cross over to the other side and hit Ali on her left-hand side.

“I was just beginning to ride with the curve when a green truck came barreling through the bike lane to move straight through to the smaller intersection (Marion and Bayaud). The truck hit me around the front passenger side. I felt my head and left side of my body hit the car. I fell to my left and hit the ground, where I immediately felt the pain in my left arm,” explains Ali. Since she landed on her left side, most of the ‘blow’ was to that side only.

An ambulance transported Ali to the hospital where doctors told her that she would need surgery. Her shoulder was dislocated, and her upper left arm, elbow, and hand were broken:

• Humerus fracture (in at least 2 places) - x-ray, CT scan, surgery

• Elbow fracture - x-ray, CT scan, sling and brace for isolation

• Wrist (carpal) fracture - x-ray, CT scan, stint for isolation.

According to the police report, the driver was not cited due to conflicting statements and no witnesses. The driver stated that he saw Ali in the bike lane but that she swerved over into the side of the truck all of a sudden. However, the driver indicated to police that he “was probably crowding the bike lane a little bit” and saw Ali in the bike lane and “probably should have moved over a bit.” 

Ali was very disappointed to learn that although she had been severely injured, the driver would not be punished. “There essentially was no accountability placed on him,” she says. “This is mostly because there was no further investigation completed by the Denver Police Department. When the police officer got to the scene, the driver already had his story fabricated that I swerved into his truck and that I only had a dislocated shoulder.” Ali firmly believes that a follow-up investigation should always be done as mental/psychological injury cannot be seen right away regardless if there is serious bodily injury or not.

When Ali followed up with the officer, he asserted that he could not undeniably prove what occurred in the crash in a court but believed the driver to be at fault and thus assigned the driver as Traffic Unit #1 in the report and cited other incriminating comments that the driver told him.

Since the driver did not have to appear in court, Ali was deprived of the chance to seek justice in a traffic case and never had a chance to see the driver punished. Ali was clearly in the right and the driver at fault. Our firm obtained the driver's full policy limits and then also made a substantial recovery from Ali’s own auto insurer as well—all indicative that the insurers accepted fault on behalf of the driver and did not apportion fault to Ali.

As a result of her injuries, Ali had to take sick time, go on short-term disability at 70 percent pay, and was not able to return at a full time capacity immediately. Her husband became her caretaker and accompanied her to all doctors’ visits and the surgery. He woke her up every four hours throughout the day and night to administer pain medication for the first two weeks, ran errands, did all the cooking and cleaning, and drove her to her appointments. He also did physical therapy with her two to three times a day. 

Beyond the physical injuries, the crash took an emotional toll on Ali. The missed work and specifically the timing inhibited her career growth; the position above her was vacated, and she was filling the role and attempting to prove herself worthy of the promotion when this crash happened. 

It has also been difficult for Ali to get back on a bike again. The first time riding her bike was on the two-year anniversary of the crash. “I truly have lost my appetite to ride because overcoming the anxiety does not outweigh the joy I once felt when riding,” she says.  She has only ridden a handful of times, more as a mental health initiative. She rode on dedicated paths without cars or on the sidewalk. (Read more HERE).

Ali is also more afraid to drive in a car. Since the car hit her from behind/in her blindspot, she is constantly afraid that she will miss seeing someone and hit a person, biker, or car. 

One of the main things that Ali learned is that simply riding in the bike lane does not provide an impermeable shield from cars to bicyclists. She believes that in order to make cycling safer, physically separated bike lanes are necessary to make it harder for cars to impede the bike lane.

Community volunteer and bike advocate Amy Kenreich agrees. She has been involved with the Mayor’s Bicycle Advisory Committee (MBAC) since 2017 and has been speaking to both residents and cyclists in support of the S. Marion Street Parkway Improvements project. The city is currently finalizing designs, and construction of a protected bike lane is planned for 2020. Although Amy heard a lot of positive feedback from part of the population, there are many people, especially residents, who oppose adding a protected bike lane. Amy says that most of the arguments against the protected bike lane stemmed from one theme: “Not In My Back Yard.” “Sometimes people are simply opposed to change,” she says.

“I had a really difficult time understanding why anyone would oppose a protected bike lane in front of an elementary school. I live four blocks away from this project. I take my kids to the playground at Steele Elementary often, and I also ride this street to reach the Cherry Creek Trail. When Alexis Bounds was struck and killed, it made me mad and terrified me. Because I have been on the MBAC and because I know about Vision Zero, I just couldn’t sit by and do nothing,” says Amy. 

Amy encourages people in Denver to follow the Bicycling in Denver page and to check out “News and Updates” for a list of upcoming public meetings.

“One of the best things you can do is attend these meetings and make your voice heard.  Another way you can help is to submit feedback on the same site. DOTI (Department of Transportation and Infrastructure) really does read and tally up all comments that come in on a project. For the Marion project, the city showed a slide of all the types of feedback that came in, and it clearly showed that the #1 priority was the safety of bicyclists and pedestrians. Your voice matters, and it doesn’t take much time to make sure it’s heard,” emphasizes Amy.

Another site to watch is the Denver Bicycle Lobby. They post the Denver bike lane public meeting dates on their site and also host meet-ups and organize efforts to support bicycle advocacy in Denver. 

Please advocate for safer cycling with us on February 3rd at the State Capitol in supporting this bill. Here are the details:

State Capitol

200 E. Colfax

Denver, CO 80203 

The hearing will be on the third floor in room 352 - Senate Judiciary.  

Time: 1:30 pm. 

Distracted Driving: Think Twice Before Picking Up Your Phone

Crash Turns Injured Cyclist’s Life Upside Down

Chris Farney is a cycling advocate who helps neighbors, local kids, and coworkers with bike mechanic work.  He advocates for safety and awareness of cyclists when talking to people day to day. Chris tries to educate everyone that he meets about the local laws. He attends city bicycle friendly planning meetings and participates on committees to help start a local free bike share in Saint Joseph, Missouri.  He races mountain and cyclocross for his local bike shop but enjoys MTB the most. Chris has a hand in building and planning the singletrack network.  

From 2005-2011, he was a part-time bike commuter, but started riding every day, anywhere he needed to go after starting his first job. After surviving a Colorado winter with his car never leaving the garage, he sold it to buy another bike.  Chris has been a car-free bike commuter since September of 2011. He owns eight bikes and rides seven of those regularly.

Chris’ six-year-old son is also a bike enthusiast. His fourth word was “bike” and his life has followed accordingly.  At 16 months, he was scooting around on a balance bike. Chris and his son spend most of their time together riding bikes in any weather, season, or terrain.  

Bikes are Chris’ life. Everyone knows this about him, but few understand how time off from the bike truly affected him.  

On June 7, 2017, a 19-year-old driver hit Chris with the left front end of her SUV when she was making a left turn.  Chris was on his way back to the office from a ride during his lunch hour. As he was coming down a hill, he noticed a white SUV sitting at a stop sign about three to four blocks ahead of him. 

As Chris was coming to pass the SUV on his right at the stop sign, the SUV pulled out into the intersection in front of him.  Chris was going about 30 mph. He remembers trying to swerve around the SUV and was almost out into the oncoming lane, but the car just kept coming.

He remembers thinking that if the driver would even just tap the brakes and slow down a little, he could get clear and swerve around the entire front of the car. In the moment before the driver hit Chris, the car only seemed to speed up like the driver never saw him at all. In his mind, Chris was thinking “How could they not see me? I’ve been coming down this hill, completely unobstructed view with no traffic in front of me, and I’ve seen them for at least the last 4-5 seconds!” 

As a daily cyclist, Chris is used to riding defensively and has avoided many crashes where people “didn’t see me” when he still had the right of way.  He has a bright green backpack with a Rando-style slow moving vehicle reflector on the back of it. This was not a situation where he did not expect to be seen.  

Chris is convinced that the driver was using her cell phone while waiting at the stop sign, then looked up, thought it was clear, and went.  He believes that she never saw him at all.  

What would Chris say to the driver or any other drivers about cyclists/safety? “Please understand the gravity of the situation of simply pushing your foot forward to propel a 6,000-pound-projectile of metal and glass forward, and how it could affect people around you if you aren’t being 100 percent attentive to where that 6,000-pound-projectile goes.”

The impact caused Chris to flip over the hood, landing down the street.  He flew 50 plus feet through the air. Chris was wearing a helmet, but luckily his head never hit the pavement. 

“The next thing I know I’m lying a ways down the street on my right side, and it’s like everything from my waist down hurts and is numb at the same time.  I instantly knew my cervical spine was intact, as I could move my head, and I was holding my head up off the street while lying on my side,” says Chris. At first, it was like the wind had been knocked out of him.  A witness called 911 and told him to lie still.  

Chris looked down at his legs and saw that his right foot was bent in, and he could not move it.  Initially, he could not really move anything, and it crossed his mind that his whole right leg was either broken or paralyzed.  Then, a paramedic ran Chris through tests, and he was able to slightly wiggle his toes. Paramedics put him in a neck brace and put him onto a stretcher.  

He realized that it was very painful to put any weight on both feet, but especially the right one, and it hurt a lot to put weight on his left hip/buttock.  Chris was then transported to the hospital by ambulance for multiple areas of road rash to his body, deep cuts to the top of his right foot, and a large patch of black tire marks from the car’s front tire impact. An EMT suspected that Chris had multiple broken bones and internal injuries due to the nature of the crash. 

In the ER, Chris had an ultrasound of his abdomen, then x-rays of his cervical spine, pelvis, left femur/knee, right and left foot and ankle. Chris also had a CT with contrast of his abdomen. He suffered seven broken bones between both feet (four on the right and three on the left).

His bike was totaled.

A police officer talked to Chris at the emergency room shortly after he arrived. Chris later found out that the driver was not ticketed, as she had followed all traffic regulations—she came to a full stop. The police officer told Chris that he could not give the driver a ticket just because she did not see him and went on to state that a ticket was not necessary to assign fault, as the police report clearly did that. 

No ticket. No legal consequences. No points or fines. No change in the driver’s behavior. 

Three months after the crash, Chris was finally able to get back on the bike.  “I was so thankful just to be back on the bike again, three months off it was an eternity for me, I think I actually cried a few tears of joy on the first bike ride.” It took him a few weeks of riding to get comfortable again on the bike.  He got very apprehensive when cars were at stop signs waiting for him to pass, wondering if they would remain stopped when he passed in front of them. “It certainly does mess with your head. Every time I’m cruising down a hill at 30 mph, my mind goes back to thinking about how it would feel to get launched through the air over the hood of a car again,” he says.

Chris missed out on a lot of time on his bike and could not attend bike events as a result of his injuries.  He missed approximately 60 days of riding, 60 days that he would have ridden his bike had it not been for injuries sustained in the crash.  He missed racing in an MTB race called the Meltdown, Gravel Worlds, which he had participated in the last three years, and a 100-mile MTB race in Missouri called the Ozark Trail 100 which he won last year.

He was not able to ride on a family vacation to Winter Park and had planned to do the Breck 100 MTB race in Breckenridge while he was there.  He could not participate in cyclocross season, as the doctor did not allow him to run. Chris has raced competitive cyclocross for the last six years, and this was the first year he was not able to race a season of cross.  

In addition, his injuries kept him from going on a bikepacking trip with his friends.  “Most importantly, I missed the camaraderie and social aspect of going to these events and meeting with people that I have formed friendships with over the last few years. I missed the camping and riding with my good friends,” says Chris.

The crash affected his home and work life, too.  For the 10 weeks that he was limited with his weight bearing status, his wife and co-workers had to drive him to/from work and anywhere else he needed to go.  He was unable to participate in daily parenting duties such as carrying his two-year old to bed or getting up at night to help the kids; duties that he and his wife typically share.  

While recovering, Chris missed out on a lot of fun with his kids and friends that summer. He typically rides around the neighborhood with his son in the evenings. Chris says that it was very difficult having to tell his son every evening that they could not do that or do their Saturday morning ride to the bike shop.  He was unable to swim with his kids in the pool or the lake for the first six weeks after the injury. He went to the playground down the street with his son a few times but was unable to play with him there. 

He could not go to an MLB game with his friends, because he could not walk or sit in a hot stadium as that would cause too much swelling in his foot. 

Going through all the doctors’ appointments and dealing with the extra trips and appointments caused Chris a great deal of stress, although he says it was more stressful not being able to exercise or move like he is used to. This affected his attitude, sleep, and mood. “Exercising is a big part of my life balance, and after the crash I was way out of balance,” says Chris.  

In order to make cycling safer, Chris believes that stiffer penalties for endangering or injuring bicyclists or pedestrians are needed. He would like to see the minimum driving age raised a year or two.  “Teenagers aren’t able to vote, but they can pilot a huge hunk of metal around people and cyclists/pedestrians willy nilly? Seems crazy. If kids didn’t have cars, they would bike/walk more, too. They would think about solving problems in our communities regarding transportation from a young age,” says Chris. 

According to a report by the National Highway Traffic Safety Administration, cyclist and pedestrian deaths rose in 2018 compared to 2017.  There were 51 more cyclist fatalities in 2018, which is a 6.3 percent increase.  This is the highest number since 1990. That is 859 too many cyclist fatalities. Experts say that distracted drivers and bigger vehicles could be the reasons.

Chris feels that distracted drivers are the number one issue and that we need to keep trying to fight that. Texting while driving means you are distracted.  “I see people scrolling through their newsfeed and driving all the time. That’s insane.  I don’t know how to solve the distracted driver issue.  I think that’s the biggest safety threat to cyclists that has come up big in the last 5 years.” 

For the latest on distracted driving legislation in Colorado, check out this blog post. 

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.

Not His Fault: Driver Maintains Innocence Despite Citation for Careless Driving

He received a ticket for careless driving but never took responsibility for his actions. He went right into, “it is not my fault mode” and stated that cyclists always bike too fast on the road where the collision happened. That statement is the first thing Erin Entlich remembers hearing from the driver while she was lying in the road. She found his lack of concern for her well-being alarming.

“I was not cycling ‘too fast’, and it’s incumbent upon him to be watching for moving vehicles whether that’s a car or a bike or a scooter. His actions could have killed me!”

— Erin Entlich

Since the driver lives on 32nd Avenue, Erin feels that he should be acutely aware of how busy of a cycling road it is. “It would not kill him to be patient and wait a few moments until I had passed to turn into his driveway.”

Erin, mom to two children, fitness enthusiast, triathlete, health coach, and yoga teacher, started biking about sixteen years ago. She likes being outside and loves the freedom and sense of fun she gets while biking, as well as the satisfaction of covering distance by virtue of her own leg power! 

On the day of the crash, June 23, 2018, she was riding eastbound in the bike lane on 32nd Avenue near Youngfield Street in Wheat Ridge, CO, around 3:00 pm. Erin was wearing a bike kit and helmet, riding under the posted speed limit, was not wearing headphones, or distracted in any way. 

She saw that there was a car in the turn lane at the bottom of the hill going westbound. The car appeared to be stopped, and Erin had the right of way, so she continued cycling. All of a sudden, the driver turned left in front of her into a driveway. Unable to stop, Erin hit the front passenger side of the car, rolled over the hood, and then landed on the road on the other side of the car, several feet away. 

A cyclist riding behind her witnessed the crash and called 911. EMTs and police showed up moments later. After assessing her injuries, which were mostly contusions and abrasions as well as a chipped tooth, Erin waived the ambulance ride. 

In hindsight, Erin wishes she had known to go to the hospital even if you do not think it is necessary. “There’s so much adrenaline in the moment, and I wanted so desperately to be okay that in my mind if I didn’t need the ambulance, then it wasn’t that bad of a crash,” she explains. She also wishes she had known not to move after the crash and had known not to feel pressured into giving a statement to the driver’s insurance company right away because you can still be in shock or fuzzy on the details. 

Most states, including Colorado (C.R.S. 13-21-301), have laws forbidding insurance companies from contacting you for at least two weeks post-crash, since you are likely in pain, possibly on pain meds, distracted, overwhelmed, or uncertain about what your injuries even are.  Yet, many of our clients report to us that within days (and sometimes even hours!) of their bike crash, they have been contacted by the insurance company for the at-fault motorist, and they have been pressured into giving a statement which is almost always recorded. 

Erin ended up going to urgent care first thing the next morning, as she was unable to move her left arm or heavily weight her right foot. She also had severe neck pain and whiplash; she could not lift her head without supporting her neck for a couple of weeks following the crash. Erin ended up having to do several months of vestibular therapy. She also suffered a deep bone bruise to her left shoulder. Many of her symptoms—ocular migraines, persistent headaches, and continued neck pain—did not present until later.

What surprised her most going through this experience is that her own insurance was a nightmare to deal with in terms of getting them to pay out her MedPay claim. “You assume the driver’s insurance will be difficult or provide push-back, but you think your insurance is going to protect you and, to date, they have only paid out about half of my policy amount and continue to deny certain claims,” says Erin. 

Erin knew that if she did not get back on her bike sooner rather than later following the crash, she might never ride again. Three months after the collision, she was back riding again, opting for a bike path instead of the road.

“I was nervous and anxious and hated every minute of it, but it helped me conquer my fears,” she says. She started riding again with some regularity in June 2019, about a year after the crash, and went on to ride the rest of the summer. It took about three months of regular riding for her to stop feeling anxious on the bike, though, especially if she was riding on the road. Cars turning left in front of her were a huge trigger. “I feel good now, relaxed and confident again, but I am most definitely more cautious when I ride, which maybe is a good thing.” 

Erin still finds herself gravitating toward bike paths, especially if she is riding alone. If she is on the road, she now prefers to be with other cyclists. At the time of the collision, she was riding alone. Erin wants other cyclists to know that just because you are riding in a bike lane and obeying the rules of the road, you are not necessarily safe. Drivers are distracted more than ever and not necessarily watching for cyclists.

Three months after the collision, the district attorney in Jefferson County Court dismissed the charge of careless driving and offered the driver a plea deal. He pleaded guilty to a lesser charge—failing to yield the right of way on a left turn—and paid $119.50 in fines and court fees. He got off easy.

Erin believes that the simplest thing that we can all do is to be good bike ambassadors—obey the rules of the road. “If we want drivers to respect us, we need to bike responsibly, ride single file on roads, not run lights.” She has added more lights to her bike and now wears a super fluorescent bike helmet. Erin feels that harsher penalties for drivers is a good start to make cycling safer as well as education for both cyclists and drivers on how to make the roads safer. Erin has joined our 2020 Bike Ambassador team as one of our team co-captains.

Do you know what to do if you are involved in a crash?  View this Instagram post of ours for a detailed response.  

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

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.

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

When is Enough, Enough?

Driving is a Privilege, Not a Right!

Eighteen driving convictions from 1991 to 2016 including speeding, careless driving, following too closely, driving too fast for conditions, failing to yield right-of-way, driving vehicle while ability impaired by alcohol/drugs, operating an uninsured motor vehicle on a public roadway as well as numerous convictions for driving an unsafe/defective vehicle or operating a vehicle with defective/missing headlamps (probably cited for a more serious violation and then a plea deal was reached).

Yet, this driver was still behind the wheel of a vehicle when he crashed into our client Drew Chambers on October 3, 2017. The officer issued him a citation for careless driving resulting in injury to which he pleaded guilty on January 30, 2018. 

It was early afternoon when Drew was returning home from a ride. He was riding eastbound in the bike lane at 26th Avenue in Lakewood, CO, when the driver of a Subaru Outback heading westbound collided with Drew while turning left. 

The front of the Subaru hit the rear wheel of Drew’s bike causing him to be thrown 10-15 feet into the street and bike lane. His head hit the pavement first. Drew rolled onto his back and remained stationary, as he was worried about a neck or back injury.

The driver claimed that he did not see any oncoming traffic, but Drew was clearly visible as he was wearing a bright blue kit with green trim. He had the right of way and was not speeding. As Drew was approaching the driver head on, he could see the driver clearly not looking at him when he decided to turn.  Drew yelled, swerved, and tried to slow down but knew a crash was going to happen, and he was terrified. The entire collision was caught on a dashboard camera by a car that was stopped on Teller Street.

Drew had a number of cuts on his face and legs as well as a sore wrist. Following the crash, his wife drove him to the ER where doctors treated his cuts and took x-rays of his left hand.  The following week, Drew saw a specialist, and it was determined that there was a shattered bone in his hand which required a cast. Drew also had to have x-rays of his neck, shoulder, and spine done as well as an MRI of his left shoulder and spine following the ER visit. His neck had a compressed vertebrae, and he also had a partially torn quad as a result of the crash. 

Drew missed work due to medical appointments and a lot of physical therapy. Following the crash, he was not able to ride his bike, which he usually did at least five times a week, and he missed out on leading rides as an ambassador for a local cycling clothing and accessories company. Getting back on the bike was a mental challenge for Drew. He got back on a trainer quickly to prevent his quad injury from resulting in a loss of motion, but the first ride outside roughly five months later was a scary experience.

He wants people to remember that driving is a privilege, not a right. “Waiting an additional minute to pass a rider or make a turn will not end your life, be more respectful. No meeting or event is worth taking the risk of killing someone.” He encourages people to try to put themselves in the cyclist’s shoes, and if you have never cycled on the road, maybe give it a try to understand what it feels like to have cars brushing by and jumping turns. “If we try to understand each other a little better and what it feels like, there could be better respect on the road,” he says.

It does not matter if you are doing everything right, you can still get hit. Drew recommends always wearing a helmet and taking notes if something does happen to you, so you don’t miss anything. Finally, he firmly believes that it is very important to lean on your support network.

One thing that Drew wishes he had known before this happened is to carry more coverage for under and uninsured motorists. He learned that bike vs. vehicle collisions happen more often than you would expect and insurance companies will do everything that they possibly can to not pay out a claim.

What is Drew doing since the collision to make cycling safer for himself and other cyclists?  He works with a cycling group to bring more people into the sport and tries to share his experiences there and discuss best practices with riders.  He has a bell and lights on all his bikes (including his super-light climbing bikes) and talks to people about wearing helmets at all times. “Riding with a camera is a great opportunity, or just lights and bells. I also recommend that they not try to be as far to the right as possible but rather as visible as possible,” he says.

Drew also believes that stiffer punishments including loss of license for drivers that have infractions as well as a no tolerance repeat offender policy could help. 

In Colorado, the number of point accumulations according to the Department of Motor Vehicles Handbook for suspension for an adult are:

• 12 points in any 12 consecutive months

• 18 points in any 24 consecutive months

Some of the reasons your driving privilege may be suspended, revoked, or cancelled include: 

• Meeting or exceeding the minimum point accumulation for suspension.

• Being convicted of driving while under the influence of alcohol or drugs.

• Being convicted of failing to report a crash or leaving the scene without stopping, exchanging information, and rendering aid.

• Failing to pay a traffic fine from Colorado or any other state.

• Failing to provide valid evidence of insurance when requested by a law enforcement officer.

• Being convicted of manslaughter as a result of a motor vehicle crash.

A new Colorado law (SB19-175 - Serious Bodily Injury (SBI) Vulnerable Road User Penalties) passed on May 29, 2019, allows the court to require a convicted driver:

• To attend a driver improvement course.

• To perform useful public service.

• To pay restitution.

The law also empowers judges to assess the driver 12 points which will cause them to lose their license with the DMV. In order for this law to now protect cyclists and hold motorists accountable, we need more DAs and city attorneys to hold fast to the original charges and to stop negotiating careless driving causing SBI cases down to meaningless “defective headlamp” guilty pleas.  We are also asking law enforcement officers to cite careless driving causing SBI.

In the case of this driver, Jefferson County Judge Mark Randall sentenced him to 40 hours of community service, assessed four points to his license, and ordered him to pay a $100 traffic fine. Costs and fines totalled $315.00. Judge Randall suspended a 365-day jail sentence on the condition that the driver complete his community service within 180 days and not be cited for a charge of careless driving or above for one year.

Drew feels that the sentence was fair since the driver did not intend to hit him, and Drew believes he was truly sorry. That said, Drew says it was sad to hear how often incidents like this happen and he is surprised by the lasting impacts of the event.  For example, he will almost never ride past the street where the collision happened. He watches the film of the collision and thinks about it often when he needs to remember how fragile things can be. He still has neck issues every now and then. “It’s amazing to me how little drivers seem to take all of this into account when out on the road. The number of close calls that happen to riders like myself, who cycle daily and are putting in a lot of mileage, are almost daily. We need to cultivate a culture of better respect for riders here,” says Drew.

We come back to our original question. When is enough, enough? How many driving convictions is too many? Eighteen, now 19, including this latest case, driving convictions for this driver. Perhaps, the courts should take this into consideration the next time he is convicted?

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.