The following is an extract of my OutSPOKEn column written in early February and appearing now in the current edition of Southern California Bicyclist magazine which is available for free at many So Cal bike shops.
WE NEED TO GET MAD(D)
When I contemplated what to write for this column I thought I could get away from the bike safety theme I seem to have focused on over the last few editions. I considered topics such as the early season bike races or a preview of this year’s Amgen Tour of California which starts on May 11 in Sacramento and ends eight days later in Thousand Oaks. Maybe a discussion about how UCI, the governing body of pro cycling, has organized an independent commission of some notable high-powered talent to investigate doping in bike racing. But reality intruded, and I am angry. Hopefully after you read this you will be too.
As I write this for a second time within the 33 days of this year a Southern California bicyclist was murdered by an alleged intoxicated driver. On January 5, 22-year old David Mendez of Riverside was murdered by an allegedly drunk driver. Then on Sunday February 2, 21-year old Joey Robinson of Irvine was murdered while riding on Santiago Canyon Road. The Robinson incident hits closer to home as I ride that same road several times each year, including just a few weeks ago. The Robinson murder is particularly egregious, because the 18 year old alleged murderer fled the scene of her crime and was arrested a short time later miles away reportedly under the influence of, and in possession of methamphetamine. When a sheriff’s deputy found her she reportedly was busy with a friend removing her belongings from her damaged car.
You may have noticed I used the words “murder” and “murderer.” I did so intentionally. These are not accidents. These are not unintentional unfortunate events. Someone who kills or injures another while driving under the influence of alcohol or legal or illegal drugs is a murderer or an assailant and should be treated like the felon they are. Similarly a driver who kills someone driving distracted while texting should be treated as a felon as well. Numerous studies have shown that texting while driving is the equivalent of driving under the influence; thus said it should be treated as such. I am not saying that the drinker, drug user or text-er had murderous thoughts in their mind. Rather the criminal intent should be derived from the intentional act of choosing to drive while impaired. A person by choosing to text while driving has made an intentional decision to drive in wanton disregard for the public’s safety. That intentional act can, and all too frequently does, have disastrous consequences.
We need to change attitudes. We need to stop allowing these events to be called or treated like unintentional accidents. We need to stop having sympathy for the poor driver who made this one mistake and is otherwise a good person who would never intend to harm anyone, etc. Most murderers who shoot someone only do so once. The recidivism rate of murderers is very low. That does not mean we should excuse them from suffering the consequences, even if they were otherwise “good people”. If we as a society wish to pity someone, we should pity the real victims here David Mendez 22 or Joey Robinson 21 and the loved ones they leave behind.
In Orange County the fatality rate for cyclists runs about one a month. In Los Angeles the rate is usually twice that. The statistics for injuries are not that precise, but you know it is huge. Chances are all of you know someone who has been hit by a car while riding. Some cyclists say that if you ride a lot it is not a matter of “if” but “when”. I have been riding for 42 years and in recent years I have been tapped twice by cars; luckily both times without injury. If you read my columns, you have heard my advice to ride visibly. So that is me riding in my bright yellow vest on my Merlin with three red blinking lights in the rear and two white strobes in the front.
I hear about cycling injuries from you my readers, as a club rider and as a lawyer who has begun to handle cycling cases. When there is a cyclist fatality in Southern California I usually will get several emails shortly thereafter. These reports have gotten to me. I used to ride alone one morning a week before work. Now I stick to riding with clubs on the weekends and only in my garage on a trainer during the week. My girl friend is not a cyclist. I used to think I would love for her to share my passion for cycling. I even started shopping for a bike for her. Now I am afraid for her to start riding. I’d blame myself if anything happened to her while riding. She in turn worries about me each time I ride and has me call her when I reach the coffee stop during my rides and again when I am finished so she can stop worrying. There is a long time pro road racer I know who posted on Facebook his concerns about allowing his son to ride his bike to school. I am sure many of you have similar thoughts. Several readers have written to tell me how they have given up riding on the road altogether and only ride off road or on trails.
It is a sad state of affairs, but we should get mad instead of sad. Refuse to be a victim. Mothers Against Drunk Driving (MADD) formed over 30 years ago has worked to change the mindset of how drunk driving cases are handled. Cyclists need to take a lesson from MADD. We need to press district attorneys to treat impaired or texting drivers who hit cyclists as criminals. They need to publicize prosecutions of those drivers in the hope that they will deter similar misconduct. The prosecutors cannot leave it to civil lawyers such as me to represent cyclist victims in lawsuits against those drivers. Often those murderers have no assets from which to obtain a recovery so the threat of a civil lawsuit is often no deterrent at all. For my part long before this is published I will be in contact with the OC District Attorney’s Office to inform them that I will be monitoring and reporting on its prosecution of the young lady who killed Joey Robinson.
Cyclists should also contact their state legislators to voice their support for Assembly Bill (AB) 1532. AB 1532 proposed by Assemblyman Mike Gatto of Los Angeles says that a motorist who flees the scene of an accident would lose their license automatically for six months regardless of whether the victim’s injuries are minor or major. The goal is to have drivers stop so those injured might get help. I would prefer that a hit and run driver lose his/her driving privilege permanently, but at least AB 1532 is a start.
As I wrote late last year in the November/December issue The 3-Foot Safety Act goes into effect in September 16, 2014, but was watered down to avoid a third veto by our Governor and is not as crisp as I would like. It allows drivers to pass at less than 3 feet if they slow down and pass when it will not endanger a cyclist’s safety taking into account the size and speed of the motor vehicle and bicycle, traffic conditions, weather, visibility and surface and width of the highway. So unless a rider is hit by a passing vehicle or a motorist is caught in the act of speeding up while passing at less than 3 feet police enforcement of the new law will be difficult. Even so, a few well publicized prosecutions after the law goes into effect could get the message across. It is lamentable that given the wording of the present law those prosecutions will as a practical matter predictably also require an injured cyclist. Heck, even if the police made a point of pulling over drivers who they see getting too close could have a positive impact.
We all know texting while driving is as bad as driving drunk yet the penalties and enforcement are not correcting the behavior. The current penalty for texting while driving is about $159. There was an attempt in 2011 to increase the fine but Governor Brown vetoed the effort saying in his veto message, “For people of ordinary means, current fines and penalty assessments should be sufficient deterrent.” Perhaps the Governor should spend some time riding a bike in Orange County. Maybe the housewife texting in her Range Rover or the executive in his/her Mercedes convertible is not a person of “ordinary means” but getting hit by their car will kill or injure you just like someone driving an old compact car.
We should treat texting in a car as serious a matter as we do drunk driving. The fines are not working. I can’t remember the last time I rode and did not see a driver texting or holding a cell phone while driving. The government should be doing something more imaginative. What if law enforcement was authorized to immediately seize phones as evidence when they pull over a texting driver? The phone would be kept until trial or destroyed as part of the punishment if the driver is found guilty. I too have a smart phone and in this era of smart phones the immediate loss of my phone also means loss of the photos in it, my electronic calendar and more importantly my hundreds of contacts. Or perhaps the authorities could publicize that they have police/deputies cycling undercover looking to catch text-ers. I’d love to volunteer for that role. These are just some ideas to provoke some thoughts and discussion. Please email me your reaction to it or if you have another idea you care to share. I do like to hear from my readers, and I will respond.
As always, let me know what you think and send me your ideas to pass along in future columns. Email me at EdR4Cycling@sbcglobal.net or at my law practice at EdR4Law@sbcglobal.net. I make it a point to try to respond to each note I receive. Until next time have fun and be safe out there.