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Fighting Unjust Citations

Below is advice from two attorneys who represent cyclists.

The majority of my cycling clients are not accused of causing the crash or breaking the law.  Most of them contact me because they have been injured and desire to be compensated fairly.  This is my expertise.  Rarely, they may have been charged with infractions such as failing to have proper lighting at night, or they may be charged with improperly riding on the sidewalk when local ordinances prohibit it.  (Sidewalks ordinances are impossible to figure out for cyclists.  Three communities right next to one another may have totally different rules for whether you can ride on the sidewalk.  One second you can be legal, the next second illegal.)  But that doesn’t mean that police officers always get it right.  It is quite common that police officers simply don’t know the laws which apply to bicyclists.  Since they are unclear on the duties of cyclists, they sometimes fall on the side of giving nobody a ticket – when the driver of the motor vehicle driving improperly.  And occasionally they give the bicyclist a ticket that is unjustified.  For example, I have seen several cases with this scenario: a car is behind a bicyclist.  The car “races” around the cyclist and then suddenly makes a right turn.  The cyclist going straight ahead then collides with the passenger side of the car as it turn.  I have seen police give the cyclist a ticket for passing the car on the right – claiming the car had made a legal pass before turning right.  These type of tickets should be contested by the cyclist.

The State of Florida uses a point system for driving licenses, 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.  But tickets for cycling do not accumulate on your driver’s license.  These points accumulate when you are driving a motor vehicle.

If the cyclist is injured, a traffic citation issued to the motorist makes your case stronger.  If the cyclist receives a ticket, this also poses a hurdle to overcome in pursuing a legal claim for personal injuries successfully.  But the hurdle can be overcome successfully.  For example, if a vehicle rear ends a cyclist at night, and the cyclist did not have a taillight on the bike, this turns a very simple case about who caused the accident into a more complicated one – yet another reason why we cyclists must always follow the law.  Even if this situation, I can prove the truth about the accident.  With the help of an expert witness in vision, perception, attention, and cognitive performance in driving, I can prove the motorist should have seen the cyclist due to factors such as street lights, head lights, bright clothing, reflective material on the back of cycling shoes, a white helmet, etc.

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 or his/her attorney 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.  You should contact an attorney about the ticket right away, so you comply with the deadline on requesting a hearing.

At the first court 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 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 no points will be assessed.

Alternatively to pleading “innocent” and asking for a trial, the cyclist may be allowed by the Judge to 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 most traffic citations, there is no formal prosecutor against the cyclist.  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, in most instances, the Judge or hearing officer will issue his/her ruling. If the Judge finds the cyclist guilty, a monetary penalty will be assigned. If the Judge finds the cyclist “innocent”, the cyclist will walk away without any fine or points assessed.  Only in more serious criminal traffic charges are the penalties more severe.

What is the best way for your attorney to be able to win your hearing?  He/she needs evidence in order to prove the truth.  So:

1. Take photographs of everything, if you can.  This includes the motor vehicle which hit you (showing both the damaged and undamaged parts, your bicycle and its damage, your injuries or road rash, your torn or damaged clothing, your helmet, and the accident scene from all types of angles.  It is especially important to take a few photos from the direction you were traveling and from the direction the opposing motorist was traveling.  If there are skid marks, debris, or other marks from the accident on the road, make sure to take them.  You might even lay down something in your possession next to the skid or scrape mark, so this can be used to roughly gauge the length of the skid mark. 2. Take down the names, phone numbers and email addresses of any witnesses to the accident and keep this information for your attorney.

3. Hire an attorney quickly.  The attorney will be able to “fill in the blanks”.  If certain photographs have not yet been taken, these can be obtain by the attorney or his/her private investigator.  But evidence can evaporate rapidly!  For example, the skid marks on the road may likely be gone after the first hard rain.

3. Talk politely and respectfully to the police officer.  This is a given.  Police officers are human beings and generally try to their best with limited education, training and experience with bicycling crashes.  In my experience, the worst examples of improper tickets to cyclists have arisen after the police officer and cyclist have argued about what happened or how the law applied.

Remember that police officers still make mistakes under the best of circumstances, but the Court and Judge can correct these errors.  You always have a right to contest what is unfair.

I was once given a traffic citation while riding my bike.  I was riding straight ahead when an SUV pulled out from a cross-street with a stop sign, from my right and directly into my path.  I slammed on my brakes and hit the driver’s side door.  I broke ribs.  The at-fault driver was a priest.  I was eventually taken from the scene by ambulance.  The motorist was given a traffic citation for violating my right-of-way.  As I was laying prone on the road, not having even told my story to the police officer, he asked me for my driver’s license.  I did not have one in my tight black cycling shorts!  I was then given a ticket for failing to have a driver’s license in my possession.  The police officer reasoned that “bicyclists have all the rights and duties of motorists in Florida”, so I needed to carry my license.  I contested the ticket, using the process outlined above, and the Judge immediately dismissed it.

Chris Burns

Terrell Hogan

233 East Bay Street – 8th Floor

Jacksonville, Florida 32202

Ph. 904-632-2424

email: chris@floridacyclinglaw.com

website: floridacyclinglaw.com

Chris is a Florida Bicycle Accident Attorney who has successfully handled hundreds of bicycle related cases throughout Florida for over 27 years. As an avid cyclist and bicycle advocate, Chris understands the challenges injured cyclist confront as he has suffered three serious bicycle crashes.  Chris is an active member of the Jacksonville Bicycle Pedestrian Advisory Committee, Florida Bicycle Association, North Florida Bicycle Club, Jacksonville Racing Club, Velobrew Cycling Club, Jacksonville Bicycle Coalition, and sponsors a variety of cycling clubs, teams and charitable events.  He has competed extensively in cycling and triathlon events, and has attended the Tour De France twice, where he rode significant portions of the race courses. As an attorney, he is a partner in the TERRELL • HOGAN law firm. For more information about Chris and his services to bicycle accident victims please call him, email him, or visit FloridaCyclingLaw.com.

When I represent an injured cyclist, unjust tickets are a product of the motorized law enforcement not understanding what a cyclist endures to drive his bicycle on the road.  Note, I said, “drive.”

However, here are the seven rules of a highly effective cyclist I use to fight tickets when my injured cyclist client has bizarrely gotten one.

  1. Obey the @&^%g laws. (Do you really need to have this explained?)
  2. “Be conscious of your emotional state”
  3. Remember the people writing the citations usually don’t drive bikes. ” I think I saw you break a statute, so here’s a ticket. “
  4. Use technology as your independent eye-witness.
  5. “Law enforcement is a serious job.”  “Bikes are kids’ toys.”
  6. “Code book? We don’t need no stinkin’ code book.” 
  7. 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 avoiding and getting out of unjust tickets:

1. Obey the @&^%g laws.  This is a gimmee. Newsflash: your bike is a vehicle. On your bike, you are a driver. You are driving a vehicle…. on a road.  As such, you have the same road rights, responsibilities and rules applying to you.  If you are too important to obey the traffic light or stop sign (which does apply to you) you deserve a ticket and you will get one.  This is simple stuff: wait at the red light, stop at stop signs (do a “track” bike stop); yield to other traffic, and don’t tail gate.  Remember, most of the tickets you are going to get won’t be under Section 316.2065, the bike regulations, they’ll be the ones that apply to all vehicles on the road. Those are moving violations. Those have license points, cost a lot of money and affect your driver’s license and car insurance rates.

2. “Be conscious of your emotional state.”After a crash or if you’ve been pulled over, you are more emotional and likely will be “upset” to put it mildly.  The car driver who “almost” got a ding in his car?  He’s not mad; “I’m a motorist, and I have all the rights.”   When law enforcement shows up, you must remember the yelling person is less credible and less sympathetic.  Adrenalin and endorphin are wonderful as long as you are not talking to an officer of the law.  Count to ten before you say what you’re are thinking.  NO SWEARING.  The absence of swearing when you have almost been killed will greatly impress law enforcement and help you in a ticket situation. Swearing is a “no, no.”  High emotions are bad if you going to talk to a motorized law enforcement.  Remember: be calm; breathe in and say “RE-” Breath out and say “-LAX.”

3. Remember the people writing the citations are people in cars who don’t ride. A. To cops who spend their whole shifts in a car, bikes are not a serious mode of transportation.  So, initially, you might want to try the position 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, if you want to.  This works 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”).  It’s dishonest, because you are really a vehicle driving on the road and secondly it reduces us cyclists to second-class road users.  I suggest not using it.

B. The better position is to demonstrate the “better opportunity to observe” advantage we have.  Motorists don’t appreciate your perspective or understand techniques as a cyclist.  We are the ones most aware of the traffic conditions and our actions because our lives literally depend on it.  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.”  Your ability to “see and observe” unhampered goes to your credibility and weight of your version of the facts. In a vehicle/bike crash scenario CALMLY explain as a cyclist, you had “an opportunity to observe the entire incident,” “wasn’t distracted (magic phrases people!) by that cell phone or radio or GPS.”  When you’ve been clipped by a motorist violating Section 316.083 Florida Statutes, (3-feet rule), you are the best person to determine whether the other vehicle was not giving you a 3 foot berth as required.  In a citation scenario, if he says you didn’t stop at a light or stop sign, CALMLY explain you “don’t put your feet down when you come to a full stop, but I just pause which is a full stop but momentary.” (“track bike stop”). 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, radio or GPS” and take your version of the facts. 4. Use technology as your independent eye-witness: Whip out the camera phone BEFORE the scene changes, the lights change, your bike is moved, or the vehicles are moved. Take a picture of EVERYTHING. Here are scenes you’ll want to snap: In a Crash scene: Your bike location on the road, the location of the other vehicles, it’s distance/relation/proximity to the offending vehicle, of course, the other car, any damage to it, any debris on the road (your water bottle, bike parts, groceries, GPS or whatever fell off, its location and the stuff listed below for the ticket/no-crash incident. Your road rash, helmet, ripped clothing, shoes, bags: Get the photographs before you talk to anyone and ABSOLUTELY before you leave the scene. In a ticket: Photograph the road lanes, markings on the road, road signs or lights, the position of your bike, where the cop pulled you over on your bike and the position of the cop care. Extra credit: In one of my newsletters from FloridaBicycleLaw.com, I published the recommended Helmet cams.  Get one of these.  For fun, have “Helmet Cam In Use” on the back of your jersey.  Watch ‘em move away then. 5. “Law enforcement is a 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 mam, no sir, yes officer, no officer”) but be firm, you can defuse any anxiety or attitude so he won’t write you a ticket. “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; D. failed to give me three feet of clearance; E. came into the bike lane.   Finally, the officer has no idea how much that bike cost (it’s just a toy), so really, what kind of bragging rights in the locker room is he going to have when he says a ticket he gave was for a “ten” speed. (Ha-ha, “Wrote a bicycle a ticket??? You’re joking, right? Ha, ha, ha, ha.. Nice work Simmons'”)

6.  “Code book? We don’t need no stinkin’ code book.”  Law enforcement usually don’t have the code books on them.  They generally shoot from the hip writing the tickets from memory.  So, DO NOT talk to them when they are writing up the ticket.  If he/she makes a mistake when he/she writes the ticket and gives you a ticket for the wrong statute, you are not charged correctly. So, when you go to court to fight it, you win.  This happens a lot surprisingly, even in motor vehicle cases.  Also, if you follow #2 above, the cop may write you something lesser of an infraction.   Here’s the site 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 the time comes to go to court they may forget, lose the subpoena, forget to show up or get the time wrong or it might be on their day off.  At court if there’s no officer there’s no prosecuting witness, “case dismissed.” So, at the scene remember what the officer generally looks like.  If the cop shows up and your case is weak this is a good day.  At the scene, they get suspicious so you usually can’t take pictures of them.  However, see rule #4 above. If at the scene you use a phone camera to shoot the scene and “happen” to get the officer, you’re good to go.  Also, if you follow #2, the cop may see his subpoena and say, “ah, that’s just that bike rider, I can’t spare the time for that hearing” and he or she will be somewhere else during your court hearing. Case dismissed for lack of prosecution. Nice job.

Above all, if you have a question, call me or another personal injury lawyer who practices cycling cases. My toll free number is 800-535-3002.  I am happy to speak with a fellow cyclist to help her or him solve a ticket problem. Email me or go to my website, FloridaBicycleLaw.com.

J. Steele Olmstead

800-535-3002

FloridaBicycleLaw.com

JSteele@JSteeleLaw.com