Sunday, November 30 2008 @ 09:26 AM UTC
Contributed by: B' Spokes
[I wounder if this can be done here.]
What and Why
The purpose of this action pamphlet is to encourage injured riders to create strong enforcement of bicyclist rights to the road in injury accidents by taking things into their own hands and using laws already on the books to charge and convict drivers in court for violation of the Rules of the Road.
In spite of the best of intentions law enforcement agencies do not have the resources or the legal understanding of laws relating to bicycles from a bicyclist perspective, to investigate and issue citations for traffic law violations in most injury accidents. For example, in Portland, Oregon's most populous city known for its friendly attitude toward bike riders, city police maintain a departmental policy of facilitating exchange of information between the parties to an accident, but not investigating or issuing citations in traffic accidents unless one of the parties is placed into the area hospital Trauma system or the driver has a warrant or a suspended license. The Trauma system only takes the most serious injuries; entry triggers a police investigation including witness accounts and a scene diagram. However many bicycle accidents involve high energy transfers and serious injuries; yet no police investigation is provided-often an unpleasant surprise to many healing bike riders who later find out that it is their word against the motorist when it comes time to make an insurance claim.
Police spokesmen have stated in the past that the Oregon statutes prohibit citation unless the cop witnesses commission of the offense. This is not technically correct because the law (ORS 810.410 (4) ) allows a police officer to issue a citation after an accident based on their own after the fact personal investigation. However, even if a police investigation of the accident is available, non-motorized roadway users may still not like the result because some police officers do not see these user groups as legitimate and rightful roadway users. This paternalistic attitude fails to accord full legal rights to the most vulnerable roadway users, those who because of their vulnerability (since they are not encased in sheet metal) most need vigilant protection of the law.
But, bicyclists must consider fully the high costs associated with more intensive traffic accident investigation by police. After all, the insurance adjuster/attorney system serve pretty well in sorting out who is at fault in most accidents. Police officers' primary mission is to protect public safety; in the great majority of collisions fault is clear and investigation of accidents is more appropriately performed by claim adjusters in insurance companies. Regardless of where one draws the line, there is a point after which it is just more important for a cop to be working on a criminal case than answering a radio call to conduct a traffic investigation for an intersection collision.
We Can Do It Ourselves
And, without requiring any change in law or policy, Oregon bicyclists already have the legal tools to initiate prosecution of traffic law breakers. Oregon law allows a citizen to initiate traffic violation prosecutions in state court, AND to have police help (per Oregon statute). After the initial report is taken and the citizen signs the Oregon Uniform Citation and Complaint, the completed paperwork is served on the bad driver summoning them to traffic court to face the charges in a non-jury trial in front of a traffic judge. The complaining citizen gives an informal presentation of the case, the judge hears evidence and testimony, and then decides. If convicted the bad driver receives a conviction and fine for a moving violation which is no different than one from a ticket issued by a police officer.
The process, known as a citizen "Initiation of Violation Proceeding " is important for bicyclists - we usually get banged up the most in a bike-car collision. Too many of these wrecks occur because drivers fail to yield to us or give us our legal share of the road. These drivers are among the most dangerous drivers on the road and it is important that their driving records reflect it. Also, Insurance adjusters frequently fail to give adequate recognition to bicyclist legal rights. Whether ignorant of the law or just hostile to bike riders, many insurance adjusters see a bike collision case and instinctively favor their insured motorist. Since only the most serious collisions involve law enforcement accident investigation, the bike rider who is hurt after a clear cut violation of the traffic law by a motorist is often disappointed to learn that the driver who was clearly admitting fault at the scene is now claiming that it was the bicyclist who violated the law. If the record contains a citation and traffic court conviction of the driver, then the insurance adjuster will be hard pressed to ignore the true liability picture.