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Bike Crashes and APD, “I don’t know man”

This is a transcript from a bike crash here in Austin, Texas. Our police are so ill trained and this transcript is evidence of the same. The point is to illustrate that APD officers are not trained and the three foot and six foot rule, well that must be one of those “their own gig” things. This is not just one officer who is completely unaware of any laws pertaining to people who ride bikes. This is a systemic problem with police officers, at least here in Austin. As you can see by the discussion, this is several officers. This also involves a corporal. This transcript is from a video dash camera provided from APD on April 3, 2015.

Officer 2; John Conner Jr. AP7766:
Officer 2: (indistinguishable)…I’m just trying to get it off the road.
Officer 1: Ok. What-uh, what happened?
Officer 2: He was heading east bound on Barton Springs, he was in the bike lane and she turned right and he went…
Officer 1: (interrupting) He hit her?
Officer 2: …he went straight…(unintelligible)…but he’s in the bike lane and she’s in the right lane…
Officer 1: So did she hit him or did he hit her?
Officer 2: Well she turned in front of him and he hit her.
Officer 1: I have no idea man, to be honest. I’m thinking-I’m going to go with the car; I’m thinking the bike has to yield to the cars.
Officer 2: I don’t think I know-I don’t know anything about it-I don’t know, I wanted to ask-but it doesn’t seem like something that if your driving…
Officer 1: Let me call corporal. (Speaks with dispatch)
Officer 2: (speaking to unidentified person) yeah she was turning and he was going straight…
Officer 1: (On phone) Hey Corporal-quick question for you; so a person’s in a car, outside lane, going straight, and there’s a bicyclist in the bike lane right next to that car. The car goes to make a right turn and then the bicyclist goes against the car. Who’s at fault?
(pause)
Yeah.
(pause)
They both have a green but the car was turning and the bicyclist went against the car.
(long pause)
Ok. Really? (pause) Right, right. (pause) I’m not, I’m not seeing any signs so I’m going to go with no citation on this one, but yeah-I was just wondering because I’ve never actually had to deal with that and I-I figured that the bicyclist had to yield to the cars but I guess this is Austin.
(pause)
Corporal: Right? Bicyclist got their own (gig?) man, they got their own…(unintelligible)
Officer 1: No, no, no. I think he might’ve scraped himself up a little bit. (pause, listening) No, no, it was a normal intersection, right by Dawson and Barton Springs and she was in, you know-she was in her turn lane and she just went and made a right and the bicyclist just hit her so I guess-she like-if you will-she just cut him off, or he didn’t yield to her turning. Um, it was just like-one of those weird situations. (pause, listening) Um. Nah, I don’t think so-I haven’t actually spoken to anyone, uh- Conner was asking and I couldn’t give him an answer so I decided to call you. (pause, listening) Ok, sounds good. (pause) Alright, thank you. I appreciate it. Bye. (ends call)
Ok-um. There’s… Corporal doesn’t know either. Hopefully this won’t take long, being new. Apparently there’s some intersection where there’s a sign that says yield to pediest-yield to bicyclists. There’s no sign here. I don’t see it. I’m not-I’m gonna go with..
Officer 2: Like a bike team?
Officer 1: I can imagine-I would imagine the bike would be (liable? Plausible?) here.
Officer 2: …..and I’m going to fill out, um… and they’re going to take him over to the hospital when I’m done…
Officer 1: So they are transporting him?
Officer 2: Yes.
Officer 1: Do you know where?
Officer 2: Brack.
Officer 1: Did you already put in on the air or no?
Officer 2: No I didn’t.
Officer 1: I’ll put it on there. So…
Officer 2: (speaking unintelligibly) getting information..
Officer 1: Ok. No, let’s go with no. Um, but I want to know for myself too maybe because that’s-
Officer 2: This is the second, it happened yesterday..
Officer 1: Here?
Officer 2: No, but I mean, another bike lane-right turn…
Officer 1: (interrupting) See-in my opinion, in my opinion, my opinion-I think that the bicyclists should yield to the–
Officer 2: I do too.
Officer 1: to the traffic because,
Officer 2: What if you’re in the turn lane and they’re going straight and you cut a party off-
Officer 1: What do you mean?
Officer 2: What if you’re in the bike lane with your car…(unintelligible)
Officer 1: That’s true.
Officer 2: It’s hard, it’s like a hard….
(Briefly interrupted by passerby)
Officer 1: Maybe they should put like stop signs at every intersection for bicycles or something, you know? Because that’s-you know-you’re in a car, you’re not paying attention to the bicyclists. You’re gonna turn, exactly.
Officer 2: It’s a lot to ask, I think.
Officer 1: Well absolutely. So not only are you looking at traffic-oncoming traffic and everything, now you gotta look for bicyclist’s too? No. So yeah, I don’t-I don’t know. And I mean, this is a tight turn too-
Officer 2: Yeah.
Officer 1: -so she had to have stopped her car to turn you know, or started to slow down tremendously.
Officer 2: Yeah,… (unintelligible)
Officer 1: No, no. Hey man, I mean, at this point-
Officer 2: If She took it too fast, she took it too fast..
Officer 1: There’s no-there’s no criminal offense on this.
Officer 2: If that’s safe enough for you to negotiate the turn…
Officer 1: Exactly.
Officer 2: There’s no requirement for you to stop at a green light-
Officer 1: (interrupting) By law. There’s no—there’s no, uh, criminal offense on this.
Hey uh, John-go ahead and let them know what we’re talking about-go ahead and let them know that we’re not issuing any citations because technically they both have the right of way, um, that’s what you’re insurance company’s for-if they want, they can argue it. Just let him know that, I’m going to talk to her about that.
Officer 1 addressing driver; Car Driver: Ma’am? Hi, good day, I’m officer ____, from the police department. So normally what we would do in these situations is, we would issue a citation, ok, somebody would be getting a ticket, either you, or him. Um, it’s in our policy that we have to issue somebody a citation when it comes to traffic accidents, uh, as long as we know who’s at fault or it’s plain obvious who was at fault. Uh, we don’t know–because technically, there haven’t been any laws or anything at this point to distinguish who has the right of way in the bike lane, or if-if the vehicle has the right of way, so—it’s kind of a– weird situation so we’re not issuing anybody a ticket, ok? So, so, I had my partner, uh, he’s telling the bicyclist now, so at this point you guys have insurance companies, they can talk it out-figure it out, ok-that’s what they’re there for anyway. Um, but we can’t really determine who’s at fault because technically, you had the green light to turn, you can turn. You know, and technically, he had the green light to go, he can go. You know? I personally think that he should be yielding to you because he’s on a bicycle. Ok, if a car’s turning—or you see that a car’s starting to slow down or whatever the case may be, you need to wait, you know? That’s the way I look at it.
Car Driver: (unintelligible) ….I did put my blinker on…
Officer 1: I don’t know either, I haven’t spoken to him- I’m just letting you know that I feel that you should have the right-of-way, but I don’t know, I don’t know what the situation is ma’am, I don’t know-um, I know there hasn’t been any clear cut laws. I know that some intersections have signs that say “Yield to bicyclists”, but that’s a different situation.
Car Driver: Like yield on green, or something like that…
Officer 1: Right, but the thing is, is that there’s no signs on this intersection for that. If there was then that would be a little bit of a different story but there aren’t any here, so I’m not going to give you a ticket and I’m not going to give him a ticket. I mean, technically you both had the right-of-way, and you both took it. So, ok?
Car Driver: I really didn’t see him until he was like, cracking into my window.
Officer 1: Were you making a left turn?
Car Driver: Yeah.
Officer 1: Wait—so you were on this road (Dawson) and you were making a left turn?
Car Driver: No, I was coming Barton Springs and making a left on Dawson.
Officer 1: Turning right onto Dawson?
Car Driver: Left.
Officer 1: Oh, ok, you were coming this way.
Car Driver: I was coming from that direction…
Officer 1: Ok. So you weren’t coming this way.
Car Driver: No.
Officer 1: Ok. Allright, gimme a second. (To Officer 2): Uhhh…which way was she coming?
Officer 2: She was coming from over there.
Officer 1: She told me she was coming the other way.
Officer 2: Oohh.
Officer 1: Because that changes everything. She said she was making a left, she was going towards MOPAC, she was making a left turn onto Dawson.
Officer 2: That’s a citation.
Officer 1: That’s a citation, yeah exactly. Yeah-I have no idea. Do you have her license?
Officer 2: No I gave her her license back but I ran her already and I saved it in the car.
Officer 1: Ok, I’m going to explain to her that I’m going to have to give her a citation and I’ll just do it over the e-ticket, it may be quicker.
Officer 2: All right, I’m going to run down and start him. I’m going to kind of verify this whole story-
Officer 1: Ok, yeah-find out—and uh–
Officer 2: –because from my understanding…
Officer 1: –because that’s what she’s telling me—ok?
Officer 1 addressing driver; Car Driver: Ok, ma’am? Can you step out of your vehicle please? I’m just trying to figure this out here. Ok—so which way were you going?
Car Driver: I was coming from over there turning this direction.
Officer 1: So you were driving this way-to the other side of the road to where that car’s going right now.
Car Driver: Yeah.
Officer 1: Ok. And you were in the turn lane—
Car Driver: Yes sir.
Officer 1: and you had a green light—
Car Driver: Yes.
Officer 1: …and you were going to make a left turn to come up Dawson this way.
Car Driver: Yes sir.
Officer 1: Ok. And how did he hit you?
Car Driver: He….I was—I was already in the turn-like I’m in the middle of turning and he ran right into my passenger door and all the glass got me—I was already turning.
Officer 1: So he hit your passenger door?
Car Driver: Yes.
Officer 1: So what happened over here?
Car Driver: Previous damage.
Officer 1: Oh. Ok. I’m like—did he fly through the car…?
Car Driver: No, no. (both chuckling)
Officer 1: Or what happened–I was confused..
Car Driver: He was like—I had already, like I was already in the turn and he just slammed right into my passenger… door.
Officer 1: Ok. Alright—at that point ma’am, I am going to have to issue you a citation, ok? We were under the impression that you were going this way for some reason, that’s what-that’s what we heard, that’s what the story was. So we were under the impression that you were coming this way…
Car Driver: Oh…
Officer 1: …and you turned and he came and hit you.
Car Driver: …pays to be honest.
Officer 1: Uh-ma’am, at that point, we um…
Car Driver: (begins crying)
Officer 1: Ma’am? I understand. And this is-this is an issue that we’re having here in Austin because these bicyclists are so hard to see. When you’re on the road you’re so used to paying attention to traffic not bicyclists, I understand. Um, however though—when you are making a left turn, then you have to actually—the law, Texas law states you have to have, without a shadow of a doubt, basically that you can make that turn and make it clear without having any kind of obstruction.
Car Driver: I-I mean, I saw him so far in the distance. I mean, like nothing—and then all the sudden when I was in the middle of the turn, I mean, I…
Officer 1: Right. Alright ma’am, do you have your license ma’am?
Car Driver: (crying) Thank you for being honest.
Officer 1: Ok ma’am, I appreciate it-and like I told you earlier, this is nothing against you, ok? This is something that we have to do by the powers that speak, that we have to give a ticket when there’s been an accident, ok?
Car Driver: (crying, speaks unintelligibly)
Officer 1: Just give me a sec, ok?
Officer 1 addressing Officer 2: She’s crying now.
Officer 2: She’s upset right?
Officer 1: Yeah, she said “that’s what I get for being honest”, I’m like, I have to give you a ticket. What did he (cyclist) say he was doing?
16.42
Officer 2: He didn’t know what happened; he said he thought that she wasn’t going then she turned right in front of him. There’s a couple ……who say that it happened abruptly. There was a couple sitting here when I first got here who said “well, we saw everything and we’ll tell you whatever you need to know” and I’m like, ok—I gotta move this car first then I’ll come find you. I’m gonna go over and grab her and ask her which way she (driver) was going.
Officer 1: Ok, sounds good.
Officer 2: Yeah, they’re saying she was heading west…
Officer 1: She was heading west? Do you have paper copies, man?
Officer 2: Sorry?
Officer 1: Do you have paper copies?
Officer 2: Uh, CR3?
Officer 1: No, uh…
Officer 2: Tickets? Yeah. Yeah.
Officer 1: We should get them workin.
Officer 2: It’s just failure to yield right of way left turn, right?
Officer 1: Yes.
Officer 2: Ok. I’ll get ‘em, I’ll do it. It’ll take like two seconds.
19.35

Some common insurance questions, answered

Do you have the right coverage on your insurance?For all of my friends who are looking to insure or are insuring an automobile or motorcycle here are a few answers to questions you may have regarding what type of insurance to buy and why:

Q: Should I buy personal injury protection (PIP)?
A: Yes, every time, always, yes. Why? Many reasons, first, because you can select coverage anywhere from $2,500 up to $10,000. If you do not have health insurance, this will provide you reimbursement, dollar for dollar for any medical care you receive relating to the crash. If you do have health insurance this coverage will provide you dollar for dollar coverage and things your insurance coverage may not cover, for example, x-rays, dental, professional nursing, even funeral expenses. This coverage may even cover a percentage of lost income due to disability resulting from injuries, and costs for services to maintain the household. Each insurance company has different coverages and these are meant to provide examples.

Some people elect to only get the medical payments/med pay when electing coverage on their policy. Med Pay only covers medical expenses, as you can see, PIP can cover much more. Generally, you will not be allowed to elect both Med Pay and PIP coverages since Med Pay is duplicative of the medical payments portion of the PIP.

Q: Should I get Uninsured/Underinsured Motorists Bodily Injury Protection (UMBI) and Uninsured/Underinsured Motorist Property Damage Protection (UMPD)?

A: Yes, every time, always, yes. Why? The most reckless drivers historically do not have insurance. They have the least to lose and can cause a lot of damage. Drunk drivers can cause more harm than they have coverage for, if they have coverage at all.

By getting protection under these policies you are covering yourself in the event a driver has no coverage or causes more harm than their policy will cover. For instance, you are injured by a drunk driver and hospitalized. Most hospitalizations cost more than the Texas state mandatory minimum of $30,000 coverage. So, if you have underinsured motorist benefits for bodily injury, your own policy will cover you up to the amount of coverage you have elected.

The additional coverage will cost you a lot less than what you stand to lose if hit and injured by a reckless driver.

Some thoughts on road rage

Closeup photo of angry driver honking in trafficRoad rage is no laughing matter. Austin cyclist E. Scott recently found this out the hard way when dentist Jerry Milner became angry that Scott was riding in a traffic lane (the bike lane was overgrown with vegetation). After yelling at Scott, Milner allegedly pulled in front of Scott and slammed on his brakes. This caused Scott to fly into the back of Milner’s truck. Scott suffered damage to his knees, arms, and elbows. Milner simply drove away.

Luckily in this case Scott was able to remember the truck’s license plate number, and the police were able to track down and arrest Milner. Milner’s bumper was dented and still had the imprint of a bicycle rider’s fingerless glove.

Sadly this case highlights an ongoing problem that cyclists face when it comes to road rage. The part of the road on which Scott was riding does not have a lot of traffic, and there was another lane. It would have been very easy for a driver to simply and safely pass any cyclist on the road. But yet we constantly hear about cases in which drivers get angry that they have to slow down for a bit and share the road with cyclists. When angry drivers lash out, this leads to needless injury and death.

The worst part is that many of these injuries are entirely preventable. Yet drivers still continue to get angry and act in ways that defy not only logic and safety, but the law. Just look at the recent death of cyclist Jimmie Sines in Dallas. Rather than stop after hitting Sines, the driver continued on for half a mile with the victim still lodged in his windshield before finally dumping Sines in an alley and driving away. Luckily witnesses saw him driving and reported him to the police, but driving away after an accident is never an appropriate response, especially under such egregious circumstances.

We applaud the Austin Police Department for their quick work in the Milner case, but road rage is not an isolated issue, and it’s not going to go away on its own. So let’s continue working together. Educate yourself and others about the dangers of road rage. If someone makes you mad while you’re driving, take a deep breath and try to relax so that you will not make a bad decision in a moment of anger. If you see someone else getting angry and driving in an unsafe way, take note and report them. Let’s learn to share the road and put an end to road rage, one good decision at a time.

Revenge porn is a real problem, especially in today's world.

Revenge Porn, Let’s Talk

Revenge porn is a real problem, especially in today's world.We have all heard about it. We may have even seen it: that instance when a scorned lover posts nude or sexually graphic photos of their ex without permission to the internet. There is no excuse for this behavior and the Texas Legislature is seeking to protect victims of so-called “revenge porn” and hopes to deter such acts by creating both criminal and civil remedies.

Thus, Texas Legislature in this past session passed new laws providing civil and criminal penalties for this behavior. The new law goes into effect on 9/1/2015. Prior acts are not actionable under this new law.

It is time for parents to have those discussions with their kids about what amounts to violations of this law, anyone over the age of 17 is subject to consent laws, and a charge like this is no way to start out a young life.

The Relationship Privacy Act (SB 1135) provides:

“Section 98B.002: A defendant is liable, as provided by this chapter, to a person depicted in intimate visual material for damages arising from promotion of the material if the defendant knowingly or intentionally engaged in conduct that violates Section 21.16(c), Penal Code, with respect to the material.

  • Section 98B.003: A claimant who prevails in a suit under this chapter shall be awarded: actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown; court costs; and reasonable attorney’s fees. In addition to an award under Subsection (a), a claimant who prevails in a suit under this chapter may recover exemplary damages.
  • Section 98B.004: A court in which a suit is brought under this chapter, on the motion of a party, may issue a temporary restraining order or a temporary or permanent injunction to restrain and prevent the promotion of intimate visual material with respect to the person depicted in the material.
  • Section 98B.005: The cause of action created by this chapter is cumulative of any other remedy provided by common law or statute.
  • Section 98B.006: A person who engages in conduct described by section 98B.002 and is found liable of damages arising from that conduct is jointly and severally liable with any other defendant for the entire amount of damages arising from that conduct.
  • Section 98B.007: This chapter shall be liberally construed and applied to promote it’s underlying purpose to protect persons from, and provide adequate remedies to victims of, promotion of intimate visual material. This chapter does not apply to a claim brought against an interactive computer service, as defined by 47 U.S.C. Section 230, for a disclosure consisting of intimate visual material provided by another person. Chapter 21, Penal Code, is amended by adding Section 21.16 to read as follows:
    • A person commits an offense if: without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person engaged in sexual conduct; the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private; the disclosure of the visual material causes harm to the depicted person; and the disclosure of the visual material reveals the identity of the depicted person in or material related to the visual material and information or material provided by a third party in response to the person’s disclosure of the visual material. A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for publication that is owned or operated by the person. It is not a defense to prosecution under this section that the depicted person: created or consented to the creation of the visual material; or voluntarily transmitted the visual material to the actor. It is an affirmative defense to the prosecution under this section that the disclosure or promotion is made in the course of: lawful and common practices of law enforcement or medical treatment; reporting unlawful activity; or a legal proceeding, if the disclosure or promotion is permitted or required by law; the disclosure or promotion consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person. An offense under this section is a Class A misdemeanor. If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.”

If you or a loved one are the victims of Revenge Porn, contact our law office. We are ready to prepare a case against the offender.

Medical marijuana will be a big issue in the next voting cycles

Medical Marijuana and Voting in Future Elections

Medical marijuana will be a big issue in the next voting cycles

In 2005 and 2006 in Northern and Southern California, the DEA under the Bush Administration was swarming medical marijuana dispensaries that were operating quasi-legally (as legally as they could) under California State Law, specifically The Compassionate Use Act, arguably laws written very poorly. The moment the SCOTUS reached a decision in Reich v. Gonzales, 21 USC 801 the doors to the largest chain of dispensaries throughout the State and the largest edibles manufacturer (our clients) were knocked down and every asset seized in what is called a civil forfeiture action. A civil forfeiture action is a legal tool that allows law enforcement officials to seize property that they assert has been involved in certain criminal activity. This seizure of property includes cash direct from bank accounts. Businesses operating under color of State Laws but impermissible under federal law are subject to this action and medical marijuana businesses operating under the Compassionate Use Act of California were surprised when their money disappeared from their operating accounts and they were left with a subpoena and civil citation they could not defend against, U.S. v. $124,000.00. This taking was common and caused additional lawsuits by employees who were not paid for work they had provided for their employer, now sitting in jail on federal drug charges. Class actions ensued against these employers because often the dispensaries had sufficient employees to trigger what amounted to a factory shut down within less than proper notice required by state employment laws. With all operating expenses seized there is often no way to pay payroll and of course no way to pay for necessary services or expenses.

As civil counsel for both Compassionate Caregivers and Beyond Bomb edibles we turned over representation to criminal counsel in 2006 following the raids of each establishment. Shefman Law representing Compassionate Caregivers Inc. The police came in and arrested owners, managers, and employees sometimes issuing up to five year sentences. This enraged the medical marijuana community. A medical marijuana dispensary was turned into a “drug ring” by DEA accounts: DEA page on Compassionate Caregivers, Inc. The same type of reporting by the DEA of Kenneth Affolter’s Beyond Bomb business: DEA page on Beyond Bomb. Suggested that business was focused on selling to children despite the products only being available in dispensaries subject to the Compassionate Use Act and a doctor’s recommendation and patient ID card. Though, the community that supported over 30 dispensaries in San Francisco at the time and countless dispensaries in Los Angeles had a different account, here is one from the SF Gate.

Since then five states have provided for the legalization of marijuana and have operated smoothly under the Obama Administration. But, what lies ahead? The Texas legislature once again introduced a bill into the session that went nowhere, indicating legislative intolerance of alternative medicine, or perhaps more indicative of the lobbyists for the larger pharmaceutical company’s intolerance for competition from medical marijuana operating within the State.

Are you registered to vote? If you are reading this my guess is medical marijuana is a concern for you? If so, register to vote. Each of the business that are operating in California and Colorado and within whatever bounds the states they exist within allow, are not secure under a hostile federal government. If Scott Walker or another Bush become the new POTUS, the 2005-2006 behavior of the DEA and the IRS will be repeated and the legitimate businesses now operating will be reduced to a page of DEA allegations of organized drug criminals.

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