Oregon Cycling Magazine

A Cyclist’s Account of The Citizen Initiated Violation Proceedings (ORS 153.058)

by Ray Thomas and Brion Barnett

For a while now, we have been working to promote and assist cyclists and pedestrians in filing citizen intitiated prosecutions against drivers who violate motor vehicle laws and injure or endanger non-motorized users. Citing dangerous motorists, even when there is no injury, is an important part of our movement to make Oregon roadways safer for cyclists and walkers. We encourage those who go through the process to write accounts of their experiences to guide other cyclists and pedestrians in the future.  Below is an excellent account of a successful citizen prosecution in Washington County, Oregon of a motorist who “clipped” (a mild word for such a dangerous act) a cyclist—and the author of this account—Brion Barnett.  Brion offers a number of helpful and practical observation and suggestions for anyone pursuing a complaint against a law-breaking motorist. It is an excellent companion to the article in the July Issue, “Citizen Prosecution of Dangerous Drivers”. Also, at www.stc-law.com/citizenprosecutions.html  you will find a list of Washington County contacts Brion created.  Brion shows us that you can help make the roads safer yourself!

I used Citizen Initiated Violation proceedings in Washington County, Oregon to successfully prosecute a motorist who struck me on my bicycle commute home.  The process took about five months (four waiting for the plea and trial), approximately 16 hours of my time, and about $10 for a public records request to arm me with information for trial.

What Happened?

I was commuting home at approximately 4:30pm on December 13th, 2007, heading westbound on SW Tile Flat Road (300 feet west of SW Grabhorn Road) in Beaverton.  As there is no shoulder, I was riding in the outside wheelpath of the travel lane.  Three or four cars passed me with a four-foot cushion, but the next car came right beside me and hit my left elbow with its passenger-side mirror, then drove off.
Luckily, I stayed upright and quickly looked at the vehicle to get the license plate.  I was uninjured but upset that the driver had room to pass safely with no oncoming traffic, but instead chose to “clip” me.

How I Got the Process Started

Once I arrived home, I wrote down everything I could remember (description of vehicle, license plate number, date, time, weather conditions, etc).  Based on a bicycle legal clinic sponsored by the Bicycle Transportation Alliance (BTA), I called the presenter, Ray Thomas, the next day.  He encouraged me to follow the process and advised the likely offense the motorist could be cited for was ORS 811.410 (1)(a) (unsafe passing on the left).

I next contacted the Washington County Sheriff’s Office non-emergency phone number (503-846-8611).  I talked with a Deputy who wasn’t familiar with the citizen initiation process [this is common (Ray)], but he looked up ORS 811.410(1)(a) and agreed it was likely the applicable violation.  He directed me to come to the Washington County Records Department, file a written complaint, swear to it in front of a clerk of the court, sign the complaint, and then an officer would serve it on the driver as a citation.
At County Records the next day, a Corporal (a patrol/traffic officer) took my testimony in front of the Records Clerk.  I swore all my statements were true and signed the complaint/citation.

What Happened Next?

During an investigation, the registered owner of the vehicle admitted seeing me on my bicycle on the date and time of the incident, confirming he was driving the vehicle at the time, a critical fact needed to show probable cause.  Now having found probable cause, the Corporal cited the driver on December 29, 2007.  A few days later, I obtained a copy of the citation and report from the records department.  A court date of January 29, 2008 was set for the “defendant” to make a plea, but the defendant pleaded “not guilty” by mail before the court date [also commom (Ray)].  During the first week of April 2008, I received a subpoena to appear in court at the trial on April 14, 2008.

What to Expect If You Go to Trial

The judge asked the officer who issued the citation to testify first.  The officer essentially restated for the record that I gave sworn testimony, he investigated the testimony, believed that there was probable cause to issue the citation, and issued the citation.  Although I expected to testify next, the judge asked the defendant to give his side of the story.  The defendant testified that he saw me in the roadway, but drove into the oncoming lane and passed me without contact.

I testified last and provided the judge a copy of maps and pictures I took to help him visualize the scene.  I reiterated I was riding in the outside wheelpath of the travel lane since there was no bike lane or shoulder, the speed I was traveling (from my cycling computer), and that a few cars had passed me with a three to four-foot berth.  I then stated I heard the defendant’s vehicle behind me and was surprised to see it travelling right next to me, but just barely faster than me, and that the car’s passenger-side mirror struck my left elbow.  I noted I was able to get a good look at the vehicle and license plate primarily because it was traveling slowly and very close to me, rather than faster and farther away.

The judge then asked the defendant to respond.  The defendant indicated that after he passed me he saw in his rearview mirror that I was still upright and riding.  This seemed odd to me and indicated he had a reason to look back—maybe because he knew he had clipped me or come too close.

Lastly, the judge asked if I had anything to add.  I only noted that I drove an automobile too and there is room on that road for both bikes and cars.  Then the judge asked the officer if the State had any recommendation on the case, and the officer stated he did not.

The judge then addressed the defendant and explained the ORS law about passing on the left and noted he believed the defendant tried to pass me, but did not do so safely.  He urged the defendant to pass safely in the future and not return to the lane until he completely overtakes the vehicle.

The final ruling was that the defendant was cited for unsafe passing on the left in violation of ORS 811.410 (1)(a), a $242 fine.

Lessons Learned

• You have a better chance of success if you can be politely assertive, courteous, and patient when interacting with police and court personnel.
• If at all possible, try to get a look at the driver of the vehicle to ensure you can prove the registered owner of the vehicle was driving it at the time. Otherwise, the officer might not have probable cause to serve the citation.
• Before you make a trip to the Records Department, call and confirm that a “clerk of court” will be available so you can swear/attest to and sign your testimony.
• If a citation is served/issued, obtain the traffic citation number and case number for your records (you will need these numbers to obtain copies of the information via a public records request).
  Call the court before the defendant’s scheduled plea date to check on the status of the case.  I appeared at court on that date, but learned he already plead “not guilty” by mail.
• If the case goes to trial, be prepared.  You don’t have to prove guilt beyond a reasonable doubt, but the judge does need to believe your account (say 51%) more than the defendant’s account (say 49%) for you to succeed.
• Obtain a copy of the citation and case file/report via a public records request.  Review the report and pay special attention to the statements made by the defendant.  I used Google Maps to create both a vicinity map and map of the incident location.

Additionally, I took several pictures of the roadway at the incident location and pictures of my bike and the clothing that I was wearing (to establish that I was highly visible and had proper reflective devices).  I presented the maps and pics to the judge to help him visualize the scene and roadway conditions when I testified.

Possibly Related

• May 2008: Education is the first step
• July 2007: Pedestrian rights in Oregon
• August 2007: The yoga of mountain biking
• April 2007: Accident insurance for bicyclists
• September 2008: Stop or yield