Advice from Christopher G. Burns
The majority of my cycling clients are not accused of breaking the law. A common problem for cyclists is when they are involved in a crash with a motor vehicle which is operated improperly. Often the driver of a motor vehicle, who is guilty of a violation of law, is not charged when he/she should have been. In that situation, there is very little which can be done.
When a cyclist is wrongly accused, the best advice is to retain an attorney. The cyclist is entitled to his or her “day in court” on the ticket. If the cyclist has been injured, the attorney who is retained to represent them in the personal injury claim will typically represent the cyclist in the traffic citation matter without charging a professional fee. Otherwise, the cyclist should retain an attorney specifically to contest the citation.
The State of Florida uses a point system, where certain point values are assigned to various moving violations and other infractions. The points accumulate on your driving record. Your license can be suspended for too many points. Accumulating points is not the only bad thing about getting a ticket. You may also see your car insurance rates increase.
If the cyclist is injured, a traffic citation issued to the cyclist also poses a hurdle to overcome in pursuing a legal claim for personal injuries successfully.
Advice if cyclist is innocent of the charges:
If a cyclist receives a traffic citation or ticket, this ticket will state which Florida law or statute was allegedly violated. The cyclist will want to research the nature of this law or statute. Even better, an attorney can give the cyclist advice on this law. Depending on the severity of the infraction, the infraction will be considered either a civil or criminal matter. In either situation, the accused cyclist will have the right to request a hearing. The cyclist is usually given a minimum of 30 days to decide to pay (and not contest) the ticket, or to request a hearing. If innocent, the cyclist should elect to request a hearing. Your attorney can request the hearing on your behalf.
At the first hearing, the cyclist will be asked to enter a plea to the ticket. If the charges are clearly bogus, the Judge or hearing officer may even dismiss the charges at this first hearing, and the matter will be over. When the Judge will not drop the charges, the cyclist may choose to plead “innocent”, “guilty” or “no contest”. If the cyclist pleads “innocent”, the Judge will schedule a second hearing or trial on the ticket for a later date. This is usually not a jury trial. It is a brief “summary” trial in front of a Judge or hearing officer, who is the trier of fact and law. If the cyclist pleads “guilty”, he/she will be assessed a fine, court costs, and points will be assessed. Alternatively to pleading “innocent” and asking for a trial, the cyclist may plead “no contest”. In that situation, no points will be assessed and there is no finding of guilt on the part of the cyclist. However, the cyclist may be required to pay certain court costs.
If the cyclist has pleaded “innocent”, there will be a second hearing or trial. If the traffic citation is a civil matter (which most are), the police officer issuing the traffic citation will act as the prosecuting officer. The officer will explain why the ticket was issued. The police officer can also present witnesses and evidence to support his ticket. The cyclist will then have the opportunity to testify and present witnesses and evidence to oppose the ticket. The hearing is typically short. At the conclusion of the hearing, the Judge or hearing officer will issue his/her ruling. If the Judge finds the cyclist guilty, points will be assessed and a monetary penalty will be assigned. If the Judge finds the cyclist “innocent”, the cyclist will walk away without any fine or points assessed.
Christopher G. Burns, Esq.
Terrell Hogan
233 E. Bay Street, 8th Floor
Jacksonville, FL 32202
Phone: 904-632-2424
Telefax: 904-212-0855
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Advice from Steele Olmstead
When I represent an injured cyclist I assume they are not guilty for one reason: they have more motivation to avoid a crash. To a car it's a dented hood, to a cyclist a crash a long time of pain, flashbacks, lost cycling and huge medical bills.
However, here are the simple rules I use to fight traffic injustice when my injured cyclist client has bizarrely gotten a ticket:
- Obey the @&^%g laws. (Do you really need to have this explained?)
- "Be conscious of your emotional state" Adrenalin and endorphin are wonderful as long as you are not talking to an officer of the law.
- Remember the people writing the citations are people in cars who don't ride. " I think I saw you break a statute, so here's a ticket. "
- Whip out the camera phone dude. In which we discover another joy of light portable cell phone technology.
- "Law enforcement is serious job." "Bikes are kids toys, I rode them when I was a kid. Why didn't you grow out of them?"
- Law enforcement usually don't have the code books on them. "Sheesh, I'm supposed to know them all??!? AND get the correct? Whatever"
- Law enforcement officers are busy. In which we discover it's hard to remember an appointment way off.
Now about how these rules apply to getting and getting out of tickets:
1. Obey the @&^%g laws. That goes a long way. This is a gimmee. Newsflash: you on your bike are a vehicle. As such, you have the same rights, responsibilities and rules applying to you. You are not a kid anymore. If you are the guy in your riding gear and aerodynamic helmet which matches your bike paint and are too important to obey the traffic light (which does apply to you, like I see with the wannabe racers) running a red light in a busy intersection, you deserve a ticket and you will get one. Come on people, this is simple stuff: wait at the red light, (stop signs you can fudge if you’re locked into your pedals, but don't quote me); don't ride against traffic (I know none of you do that, but I thought I'd mention it.); don't ride carelessly; don't tail gate. Simple stuff. No ticket if you do it. Many years ago in Tallahassee, a very healthy bikey was caught doing 55mph on the truck route while in the draft of a confused trucker who didn't know why he was being pulled over. The trucker wasn't ticketed; the bikey was. Yes, it's possible. NO, DON'T do it. It was a "following to closely" ticket, not speeding. Big fine. The bikey was proud he’d gotten it as I remember actually. Remember, most of the tickets you are going to get won't be under Section 316.0265, the bike regs, they'll be the ones that apply to cars. Those are moving violations. Those have points and cost a lot of money and affect your car insurance rates.
2. "Be conscious of your emotional state." After a crash or if you've gotten pulled, you might be rather "upset." In a crash situation, since you almost became road kill you are really pissed. On the other hand, the Monoxide spewer almost got a dent in his car he's not mad. At a traffic stop the yelling person, is less credible. Be calm grasshopper, use your inner peace to stay calm. High emotions are fine if you're going to kill and eat the monoxide spewer, bad if you going to talk to the monoxide spewer's comrade in transportation (the officer) who's been sitting in an air conditioned car swapping deer meat recipes with unit 497. Remember the Tao. Breathe in "RE‑" Breath out "‑LAX." Stay calm. You have the advantage in this high school play anyway.
3. Remember the people writing the citations are people in cars who don't ride.
A. You see, to them, bikes are not a serious mode of transportation to cops who spend their whole shifts in a car, so you might want to take the tact that the "serious laws" shouldn't apply to cyclists. To many officers, "Bikes are just toys really. You use them when you have nothing else to do and riding with the kids." Use this to your advantage. In a ticket scenario, right off mention: "I was just going for a short bicycle ride, I'm sorry." ("It's just a bicycle, for goodness sakes, couldn't you please just get a warning? I won't do it again, honest")
B. They don't understand your perspective or techniques of a cyclist or as the person most aware of the traffic conditions. For example, if he says you didn't stop, CALMLY explain you "don't put your feet down when you come to a full stop, but I just pause" or whatever cycling technique it is the nice officer didn't fully understand so the infraction with which he's trying to charge you, really doesn't apply Please WATCH your tone of voice, these folks are just doing a job and don't deserve to be insulted). Secondly, explain as a cyclist, you are "not surrounded by a roof and four doors," are "right next to the road," you have the "best/total/complete view of the whole scene. " In a vehicle/bike crash scenario, this is very helpful: (here's the persuasive part) CALMLY explain as a cyclist, you are "not surrounded by a roof and four doors," are "right next to the road," you have the "best/total/complete view of the whole scene" and "saw everything" and (especially) "saw everything that the other driver was doing" and had "an opportunity to observe the entire incident." "and wasn't distracted by a cell phone" or "wasn't distracted by that loud radio (the car/truck driver had on) (magic phrases people!) One thing is for sure under Section 316.083, Florida Statutes, you for sure are the best person to determine whether the other vehicle was not giving you a 3 foot berth as required by the statute. I commend you to memorize that section number. Your ability to "see and observer" unhampered goes to your credibility and weight of your version of the facts. What may happen and does oft times, is the officer may be more lenient, because as he or she may note: you're riding a bicycle and weren't distracted by a cell phone or a radio and take your version of the facts.
4. Whip out the camera phone dude. BEFORE your bike or (the the crash scenario) the vehicles are moved. Take a picture of EVERYTHING. Here's scenes you'll want to snap: With a ticket: the road, markings on the road (those are actually called traffic control devices (yes, the white arrow, line or dash)) or the signs or lights, the position of your bike, where the cop pulled you on your bike and the position of the cop care. In a Crash scenario: your bike, crushed and mangled on the road/ground and it's relation to the offending vehicle, the other car, debris on the road (your water bottle, bike parts, groceries, GPS or whatever fell off, and the stuff listed above for the no‑crash incident. Get the photographs before you talk to any one and ABSOLUTELY before you leave the scene.
5. "Law enforcement is serious job." As far as you are concerned, you are on a "toy" that kids ride. If you are extremely polite and act conservatively, ("yes ma'm, no sir, yes officer, no officer") You can embarrass them into not writing you a ticket if you are polite and firm. "I am pretty sure I was in my lane officer..." "the light had already changed........" "I was in the intersection already..." (in a crash) "the motor vehicle A. failed to see me. B. didn't stop at the stop line next to the stop sign. C Failed to indicate changing lanes C. failed to give me three foot of clearance as required by Section 316. D came into the bike lane. . The officer has no idea how much that bike cost? ($250? $300? Try $1,500 bubba) hard when got adrenalin in body from near miss and being pulled by a cruiser. Generally only people like us who brave traffic and ride takes cycling seriously. Really, what kind of bragging rights are they going to have when they say the ticket they wrote was for a person on a ten speedy. (Ha‑ha, "Wrote a bicycle a ticket??? You're joking, right? Ha, ha, ha, ha.... THAT'S really stopping crime Simmons.'")
6. Law enforcement usually don't have the code books on them. DO NOT talk to them when they are writing the ticket up. They generally shoot from the hip writing the tickets. If they make a mistake when the write the ticket asking them "are you sure I did that?" will make the nice officer consult his computer and make sure he has the correct statute. This is not a good thing. Also, if your follow #2, the cop may write you something lesser of an infraction. If you go to court to fight it and he's given you a ticket for wrong statute, you win. They don't have charged correctly, you aren't guilty. I actually had a case where the cyclist was charged with trying to "sell a used vehicle on the side of the road" when he had sat on the side of the road longer than the Deputy liked for him to be there. The deputy transposed some numbers and we were out of there. Here's the cite to check the statute with which you've been charged. Bookmark it. If you lose it, go to the "myflorida.com site, then click "government" and then "Senate."
7. Law enforcement officers are busy. When comes time to do court they may forget, lose the subpoena forget to show up. It might be on their day off. At court if there’s no officer, no prosecuting witness, "case dismissed." Remember what the officer looks like generally, if the cop shows up and your case is weak (see what the wanna be racers do in rule #1) You usually can't take pictures of them, they get suspicious, or paranoid, even hostile. However, see rule #4 above: if at scene use camera phone to shoot the scene and "happen" to get officer, you're good to go.) Also if you follow #2, the cop will say, “ah, that’s just that bike rider, I can’t spare the time for that hearing” and he’ll or she’ll go somewhere else at the time of your court hearing. This is good. Case dismissed for lack of prosecution. Nice job.
Above all, if you have a question, call me or another personal injury lawyer (like me) who does cycling cases. My toll free is 800‑535.3002. I am happy to speak with a fellow cyclist to help her or him solve a cycling ticket problem. I won’t charge you because I have to do 30 hours of free legal work each year anyway. I can help cyclists while they clean up the Florida air.
J. Steele Olmstead
813-979-4949
prsistns@tampabay.rr.com
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