Keep in mind that
getting justice usually isn't easy. If it were, I
wouldn't have a whole website about how cyclists DON'T
get it. Realize that I can't tell you anything more
beyond what I've written here. Also, it stands to reason
that if I did know anything more, it would be
listed here. Good luck!
What to Do
if You're Harassed
If you were harassed but you weren't hurt and there were
no witnesses besides you, you might as well forget it --
it's unlikely that the police can or will do anything. Don't
expect the police to issue a ticket or arrest someone just
because you said they yelled at you. Think about it: Would
you want the police to be able to ticket or arrest you
if some yahoo lied and said that you committed some
crime?
For a misdemeanor charge, the police generally will only
take action if:
- They witnessed the crime themselves, or
- There is a LOT of evidence of the crime (including
several impartial witnesses), or
- They can get the driver to confess. Ever watch shows
like COPS in which police are responding to a misdemeanor
call they didn't witness, and they repeatedly ask the
suspect if they did the crime? Notice how if the suspect
says No, the police keep asking several times anyway?
They're looking for the confession. They know that a good
number of suspects will be nervous or scared and unable
to keep lying. If the suspect admits he did it, the
police can ticket or arrest.
By the way, you can look up license plates at PublicData.com.
(But do NOT attempt to contact the driver if the police are
actually investigating the case or charges have been
filed.)
What to Do
if You're Hit,
or if a loved one was hit &
killed
1. Understand that getting
justice isn't easy. Look at it this way: if it
were easy to get justice then I wouldn't have a whole
section of my website covering a slew of cases involving
injustice. If getting justice were easy, you wouldn't be
reading this.
2. Educate yourself about the
process. Read our Overview
of the Process, which explains what usually happens when
a cyclist is injured or killed by a motorist. You won't
stand a chance of accomplishing anything if you don't know
how the system usually works.
3. Consult an
attorney. If you are serious about pursuing
justice and you can afford it, you should consult an
attorney. Lawyers understand the process and may know how to
obtain information that you can't. They can also be helpful
in advising you of your options and giving you a realistic
idea of how likely you are to succeed with any of them. Your
friendly webmaster is simply an alternative transportation
advocate; these web pages are no substitute for professional
counsel.
The only attorneys we know of with experience in this
area are:
- Willie Schmerler at Scanlan,
Buckle, & Young (Austin), who tells us in Nov.
2002 that he's handled about half a dozen bicycle-related
cases in the last decade,
- Lenore Shefman of CyclistLaw.com,
who practices in Austin and San Francisco. Personally,
I'm a little put off that she also defends drunk
drivers.
- Steven
Magas writes, "I've handled 50+ bike cases
ranging from 3 to 7 figures in value. I also do pro bono
work on particularly nasty traffic cases, etc. I handled
Trotwood v. Selz, in which a cyclist was ticketed for
going 17mph UPHILL in a 45mph zone. He was cited for
impeding traffic. I successfully argued that he WAS
'traffic' as that is defined in Ohio law. I've looked at
cases as far away as Hawaii, and will look at a good case
anywhere in the US. I will then find a local attorney and
stay involved."
- Harvey Hyman of BicycleInjuryLaw.com.
Won a $1,000,000 judgement for a cyclist against a
California city.
- Gary Brustin at BicycleLawyer.com.
- Gerry
Oginski (NY)
- Michael
Colbach (Oregon).
Your attorney may want to employ an expert witness. We
know of only these two:
Your attorney may also want to check out the book
Bicycle
Accident Reconstruction and Litigation.
4. What to do at the
scene. If you're at the scene of a car-bike
collision in which the motorist was at fault, then do these
things:
- If you think the motorist may flee, memorize or write
down the license plate number and a decription of the
motorist immediately.
- Tell a specific person to call 911. Do NOT yell,
"SOMEBODY call 911." Point to a specific person
and tell them to do it to make sure it gets done. If an
ambulance is needed, tell your caller to ask for
one.
- Tell the motorist to NOT move his vehicle. The final
resting position of the vehicle is evidence, and moving
it tampers with the evidence. If it's blocking traffic,
too bad; the police will be there soon enough and will
authorize moving the vehicle once they've seen where it
stopped.
- By the same token, don't move the bicycle,
either.
- Get the names and phone numbers of all the witnesses.
If you are injured and unable to do so, try to get
someone else to do this for you.
- When the police show up, it is imperative that you
not annoy them, otherwise their report may not be
favorable to you. If they want to talk to the motorist
first, let them, and BE QUIET even if the motorist is
lying through his teeth about what happened -- don't
interrupt. Wait until the police are finished with the
motorist, and THEN give your statement.
- Ask the police if the driver will be cited with any
traffic violation. If they say no, ask why not. You can
disagree with them and try to get them to issue a
citation, but do NOT be argumentative or angry, or try to
tell them how to do their job. You don't want to make an
enemy out of the officer who's going to be writing the
accident report.
- If the incident was serious (driver was exceptionally
reckless, someone was seriously injured or killed), ask
if the driver will be arrested. If they say no, ask why
not. (See previous paragraph.)
- Get the officers' names and badge numbers.
5. Get a copy of the accident
report. One of the officers on the scene will
file an accident report a day or two after the collision.
(For Austin collisions, you can get a copy by visiting the
police department at 7th & I-35 or by ordering a copy
through the mail. It costs $4.00. For more information, call
APD's Report Sales department at 974-5000.)
6. Find out which detective is
assigned to the case. Call the Traffic Office
(Austin: 974-5903) and ask to talk to the detective assigned
to the case. (The case # is on the accident report.) You
might find that they haven't assigned the case to a
detective even weeks after the collision. Even if you
are able to talk to the detective, (s)he might not
tell you very much. Keep a journal summarizing when you
called and what you were told, since you may need this
information if you have to complain to higher-ups about the
lack of action being taken.
7. What to do if the police
botched the accident report. If the accident
report is incomplete or just plain wrong, write a
letter explaining exactly what's wrong and give it to
the detective. You might also considering complain to the
District Attorney's office, and to the oversight/citizen's
review board for the police department (if your city has
one). This would also be a good time to consult an
attorney.
8. Go outside police
department. If the detective can't tell you
anything meaningful, and if it's been more than a month,
then you might consider going outside the police department.
If your city has a citizens review board for the police
department, go to them. If not, see if you can get any city
councilmembers interested in your case. Get help from an
attorney if you can.
9. File a civil suit.
Whether or not you are successful in getting the police to
pursue criminal charges against the driver, you can file a
civil suit against the driver. Consult an attorney.
By the way, you can look up license plates at PublicData.com.
(But you should generally NOT attempt to contact the driver
yourself; consult an attorney.)
10. File for
insurance. File a claim with the insurance
company of the motorist who hit you. If it was a hit and
run, you may be covered by the Uninsured Motorist clause on
your own auto insurance even if you were bicycling when you
got hit. Check your policy.
By the way, you can look up license plates at PublicData.com.
(But you should generally NOT attempt to contact the driver
yourself; consult an attorney.)
Keep in mind that
getting justice usually isn't easy. If it were, I
wouldn't have a whole website about how cyclists don't
get it. Realize that I can't tell you anything more
beyond what I've written here. Also, it stands to reason
that if I did know anything more, it would be
listed here. Good luck!
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