Charges Dismissed

Good News

On 09/14/2010, I received an email from my lawyer regarding the hearing that had been held on 09/08/2010. It included this page from Judge John Payne, indicating that he was allowing my motion to dismiss the criminal charges. (It is totally illegible but trust me; that is what it says.) The charges of disorderly conduct and unlawful wiretapping have been dismissed. The judge did not dismiss the traffic ticket. However, the traffic ticket was dismissed at a hearing on 10/05/2010 before a magistrate.

Yay! 

Bad News

There are several caveats to this good news. The district attorney's office is holding on to the possibility of appealing. It has thirty days from when the decision was issued in which to file for an appeal. That means that the appeal period will expire on 10/14/2010. The district attorney's office will not give me my camera back until the appeal period expires. Most important, this is not the end of the story. There is nothing to stop Mitchell Kuc from stopping, arresting, or charging me again. I managed to climb out of the pit but he can easily just throw me back in. So I am free-er but not entirely free. I still need to do something to secure my rights and impose consequences to those who violated those rights.

Evidence

The prosecutor's evidence consisted of Mitchell Kuc's reports, my camera, including the footage it contained, and video footage that Mitchell Kuc recorded on his cell phone (00:25 - 2.6MB).



I have transcribed the very sloppily photocopied reports of 09/12/2009 and 03/20/2010 for easier reading and searching. I have about an hour of footage. I apologize for the atrocious camera work. I did not have the camera for very long and was still developing my technique. I selected the last twenty minutes to share and I cut that into four segments for efficient downloading.
  • 03:00 (18.3MB) - Prelude to the stop, in which I sing "I Love Rock 'n' Roll", by Joan Jett and the Blackhearts, and in which I deftly steer clear of a drive-out collision hazard by means of an assertive lane position.



  • 01:15 (7.3MB) - Initial dialogue, in which me and Mitchell Kuc exchange information.



  • 12:29 (74.8MB) - Interlude, in which I wait and in which Sergeant Mason arrives, talks with Mitchell Kuc, and leaves.



  • 03:11 (19.5MB) - Follow-up dialogue, in which Mitchell Kuc accuses me wiretapping and seizes my camera.



  • 19:59 (120.4MB) - All four segments together.
The dialogue continued after Mitchell Kuc seized my camera. Sergeant Mason returned and participated in this dialogue. I describe this final dialogue in my blog entry The Third Hadley Encounter: Relapse. Here are my comments on the evidence.
  • The police officers who I referred to as Officer II and Officer III in The Third Hadley Encounter: Relapse are apparently both the same police officer named Sergeant Mason.
  • In his report of 03/20/2010, Mitchell Kuc claims that he recorded a twenty-five second video clip from his car. However, the prosecutor initially told my lawyer that no such video clip existed and that Hadley patrol cars were not equipped with cameras. Later, while my lawyer was preparing a motion for the court to order the prosecutor to present this footage, the prosecutor admitted that Mitchell Kuc had recorded a video clip using his cell phone and he presented the footage to my lawyer.
  • In his report of 03/20/2010, Mitchell Kuc claims that traffic was heavy. My footage clearly shows that traffic was exceptionally light, not that this is relevant to the charges against me.
  • In his report of 03/20/2010, Mitchell Kuc claims that other drivers were overtaking me on my right side. My footage shows no such incidents, not that this is relevant to the charges against me.
  • In his reports of 03/20/2010 and 09/12/2009, Mitchell Kuc admits that he knew it was legal for me to position myself in the middle of a lane.
  • In his report of 03/20/2010, Mitchell Kuc claims that I attacked Eric Perkins on 03/30/2007. In fact, Eric Perkins attacked me; I never touched him. Adam Bartlett arrived in response to my call for help. Eric Perkins did report to the Amherst police that I had grabbed his shirt, but this claim is absolutely false, not to mention irrelevant to this case and inflammatory. I describe this incident in my blog entry My Encounter with Eric Perkins and Adam Bartlett.
  • In his report of 09/12/2009, Mitchell Kuc claims that vehicles were traveling slowly behind me. This claim is false. In fact, there was plenty of space to my left in which drivers could safely overtake me, and drivers who approached me did overtake me in this space.
  • In his report of 08/22/2009, Mitchell Kuc claims that I was cycling in the middle of the road. This claim is false. I was cycling in the outer westbound lane.
  • Neither my footage nor Mitchell Kuc's reports or footage indicate any hazardous conditions, except for Mitchell Kuc's bare assertion in his reports that a hazardous condition was present. The footage shows a calm, orderly road. It also shows me driving in n completely orderly and predictable manner, in accordance with all traffic laws and well established principles of safe cycling.
  • My footage shows Mitchell Kuc notice the camera on my helmet. The footage also shows me freely admit that the device is a video camera and that it is recording his voice.
  • My footage shows me asking Mitchell Kuc for a receipt for my camera and Mitchell Kuc refusing to give me a receipt.
  • The footage shows that when referring to the wiretapping statute, Mitchell Kuc uses the key word "secretly". From this I infer that he IS familiar with the statute, so his bogus accusation of wiretapping comes not from willful ignorance and imagination, but from a deliberate contortion of the meaning of the word "secretly" in the statute.
  • The footage shows Mitchell Kuc criticizing me for not moving to the right when other drivers approach me from behind. In fact, no driver of a vehicle is expected to move to the right when another driver approaches them from behind, except under special circumstances. Drivers are expected to watch the road ahead of them and yield to drivers ahead of them, and should not put much effort into looking behind them, except when preparing to turn or move laterally.
  • A good teaching moment occurs shortly before the stop. A motorist pulls out of a gas station in front of me without yielding. The motorist does not pull out so close in front of me as to constitute a great danger, but I did have to apply my brakes (and stop singing). This type of situation is one of many reasons why it important for cyclists to stay away from the edge of the road. Because of my position, I was able to notice the car in front of me early and respond to it quickly, and I had room to maneuver in case there had been a great danger. If I had been near the edge of the road, my lines of sight and maneuvering room would have been extremely poor. I would also have been on less clean asphalt so my braking power and braking control would have been poor as well. I would also have been much less noticeable to the motorist, who might have pulled out right in front of me or right into me, rather than just a little closer than comfortable. This type of collision is one of the most common types of cyclist-motorist collision, called a "drive-out" collision.

Arguments

After some discussion and research, my lawyer told me that he would make the following arguments.
  • The traffic ticket is invalid and Mitchell Kuc had no legitimate reason for stopping me. The evidence was collected by means of an illegal stop so it should be suppressed. Without this evidence there is no basis for the criminal charges so they should be dismissed.
  • Mitchell Kuc's report is inconsistent internally and externally. It does not constitute reliable evidence so it should be suppressed. Without this evidence there is no basis for the criminal charges so they should be dismissed. (This argument could not be made in writing since it relied on a cross-examination of Mitchell Kuc. I was very much looking forward to this cross-examination. It would have been my first opportunity to get some answers out of Mitchell Kuc.)
  • Neither the footage nor Mitchell Kuc's reports shows any evidence of a hazardous condition. There is no basis for the disorderly conduct charge so it should be dismissed.
  • My driving behavior did serve the purpose of safe and efficient travel on a public road, which is a legitimate purpose. There is no basis for the disorderly conduct charge so it should be dismissed.
  • My driving behavior was an exercise of a legal right, which is automatically considered to be a legitimate purpose. There is no basis for the disorderly conduct charge so it should be dismissed.
  • My recording was clearly not performed secretly. There is no basis for the unlawful wiretapping charge so it should be dismissed. (My lawyer told me that this argument could not be made at the upcoming hearing. It could only be made at a subsequent hearing if the wiretapping charge was not dismissed after this one. However, this assertion turned out to be false. When my lawyer did not mention the wiretapping charge, the judge specifically asked him about it.)
I presented the following documents at the arraignment on 04/27/2010.
My lawyer filed the following documents with the court on 08/25/2010.
His arguments are contained in the two memos. I was happy to see these written arguments and hopeful about the hearing. They look very good to me. They are well-researched and well-written. I also appreciated his willingness to communicate with me: to answer my questions and consider my thoughts. Few of the lawyers I have met have been satisfactorily communicative. In case you are interested, following are the cases cited in his memos.
The following cases are also relevant.

Hearings

The motion hearing was a train wreck. My lawyer acted totally confused. He did not raise most of the points that he needed to. When cross-examining Mitchell Kuc, he hinted at some points as if he was leading up to them but he never actually arrived at them. He had no response to the prosecutor's objections. The judge asked him several times where his questions were leading and what his point was. He kept repeating himself. Mitchell Kuc and the prosecutor walked all over him and both me and my lawyer ended up look pathetic. The audience had pained looks throughout. The bailiff was laughing under his breath. It was humiliating, not to mention extremely disheartening.

The traffic ticket hearing was attended by Officer Mark Shlosser, representing the town of Hadley. Mitchell Kuc did not attend.The magistrate dismissed the ticket when Mark Shlosser said that he did not have my case file with him. I am fairly confident that this was not an accident.

Afterwards

After the motion hearing, I confronted my lawyer over the phone about his performance. He had the gall to assert that it had not been so bad. It was like he had been at an entirely different hearing than me.

I was certain that the judge would deny my motions. The next week was very painful. I felt quite hopeless. I was shocked when I found out that the judge had granted the motions. It took days for my intuition to catch up with my intellect in realizing that the charges had really been dismissed.

The dismissal was an enormous relief. But as I said before, I still must decide what to do next regarding this issue, as well as my life in general. These decisions are difficult. Information and ideas seem to be scarce and no option appears promising at this point. I am working on it.
 
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Comments

  • 10/5/2010 1:51:22 PM Gee wrote:
    Congratulations Eli.
    Reply to this
  • 10/5/2010 5:06:59 PM Ryan wrote:
    Eli:

    Congratulations! Success! Victory! I'm stoked, Eli. This must be a huge relief. Criminal court is slow and ugly but the outcome was never in doubt, at least to me. The charges were absurd.

    File a civil suit, Eli. The time for defense is over. Now you're on offense.

    I've downloaded the videos you posted but I get an error when I try to play any of them. Would you consider posting them on YouTube instead?
    Reply to this
    1. 10/5/2010 8:55:09 PM Eli Damon wrote:
      Hi Ryan. Thanks. As you requested, I posted the videos to YouTube. I have embedded the YouTube copies of the videos in the page above.
      Reply to this
      1. 10/8/2010 10:33:22 AM Ryan wrote:
        Hi Eli:

        I've made several attempts to view the videos on this page but I'm still having no luck. I checked the source code with plans to copy the embedded links but I found none pointing back to YouTube. Sorry to be a pain but can you post the direct URLs to each of the videos on YouTube? I'm eager to see what happened.

        Thanks,
        Ryan
        Reply to this
        1. 10/8/2010 10:41:15 AM Eli Damon wrote:
          Hi Ryan. I am sorry about all the trouble. I don't know how to explain it. Anyway, here you go. My YouTube name is eli0damon.

          http://www.youtube.com/watch?v=BoIj6DiDmyE
          http://www.youtube.com/watch?v=M6JusLcLHK0
          http://www.youtube.com/watch?v=Zl4kdK3GuW0
          http://www.youtube.com/watch?v=d_R2hc4k4bs
          http://www.youtube.com/watch?v=fb1Ljh2_l-c

          If you have a Facebook account, you can try these links as well.

          http://www.facebook.com/video/video.php?v=1337492572208
          http://www.facebook.com/video/video.php?v=1337568574108
          http://www.facebook.com/video/video.php?v=1337493372228
          http://www.facebook.com/video/video.php?v=1337503692486
          http://www.facebook.com/video/video.php?v=1337528853115
          http://www.facebook.com/video/video.php?v=1337561013919
          Reply to this
          1. 10/8/2010 1:12:15 PM Ryan wrote:
            Thanks Eli. I'll check them out on YouTube. My account is CranksOnCam.
            Reply to this
  • 10/5/2010 8:49:30 PM Gordon wrote:
    This happened in Maryland, but could this outcome be used in your state?

    http://tinyurl.com/33z4vw6

    <http://articles.baltimoresun.com/2010-09-27/news/bs-md-recorded-traffic-stop-20100927_1_police-officers-plitt-cell-phones>
    Reply to this
    1. 10/5/2010 9:22:28 PM Eli Damon wrote:
      No. The wiretapping laws are very different in these two states. Maryland requires all parties' consent except when there is no reasonable expectation of privacy. Massachusetts requires a lack of secrecy. Consent and expectation of privacy are not mentioned. However, my case is the fourth that I know of (there are probably more) in Massachusetts of someone being charged with wiretapping for recording a police officer. The first one (Michael Hyde) went to the state supreme court, which convicted him because the recording was made secretly. The other three cases (including mine) were dismissed before trial because the recordings were not made secretly.
      Reply to this
      1. 10/5/2010 10:04:01 PM Dan Fazzini wrote:
        Well, you'll love it in Utah, only one party needs to know (you). You should have asked if HE was taping YOU. Also in Utah, the "reasonable expectation of privacy" in a public place such as the roadside would be hard one to prove regardless.
        Reply to this
  • 10/6/2010 3:12:42 PM Bruce Lierman wrote:
    Eli -
    Congratulations.
    Hopefully, the prosecutor sees the handwriting on the wall (or the ballot box) and won't pursue the issue further.
    Thanks for keeping up the fight, and good luck with the petition.
    Bruce
    Reply to this
  • 10/7/2010 11:56:16 AM Tom Jones wrote:
    I used to bicycle a lot, and never rode out in the car lanes if I could help it.
    It bugs me when people do, because not only are they a slower than cars, they are also a lot more vulnerable.
    Maybe that got the cop pissed off.
    Reply to this
    1. 10/7/2010 9:27:30 PM Eli Damon wrote:
      Hi Tom.

      I know that cycling among motor vehicle traffic seems scary to the untrained. But it is, in fact, completely safe. Moreover, timid cycling (trying to stay as close to the edge of the road as possible) can be very dangerous. This danger might be what discouraged you from cycling, but the danger can be avoided by taken a more assertive position on the road. It is ironic that the fear of motor vehicle traffic leads people into danger, both from motor vehicles and other sources. I highly recommend that you learn more about effective cycling techniques. It is incredibly empowering when you realize that you can travel wherever you want, whenever you want, by any route, under any conditions, without all of the thinking, planning, and worrying that most people associate with cycling, and without the burdens of car travel, or the unreliability and inflexibility of public transportation. I can recommend some books, and, if you tell me where you live, I can refer you to a cycling instructor in your area.

      Also, please never refer to any lane on a road as a "car lane". There is no such thing. Cyclists have the same right to the road as drivers of other vehicles.
      Reply to this
      1. 10/15/2010 10:57:45 PM Eli Damon wrote:
        Tom responded, "You've never lived in San Francisco, have you? What you describe is not possible there."

        Here is my response to him.
        ----------------
        Hi Tom.

        I have not lived in San Francisco but I have been there. I have also
        been to many other places where people think that traffic works
        differently there than everywhere else. It isn't true though. Traffic
        works the same everywhere in the country, I guarantee.

        I know you have trouble believing that you, as a cyclist, can control
        your space on the road. I was pretty amazed when I discovered it about
        five years ago. Assertiveness really does work and the effect is
        dramatic and immediate. When I first read about vehicular cycling, I
        tried it bit by bit, and with each bit, I noticed a very clear
        improvement in my cycling experience.

        These techniques have given me a freedom that I would not have imagined
        before. Ignoring my issue with the police, these techniques allow me to
        comfortably travel anywhere, even on the Interstate in Washington, DC,
        which I traveled on as part of the simplest route from where I once
        lived in Alexandria, VA into the Capitol. Being a part of traffic is
        completely natural to me now and the thought of traveling any other way
        is like the thought of living in anything but a rigid, insulated
        structure with heating, plumming, and electricity.

        Eli
        ----------------

        Tom responded, "Eli: I won't waste your time or mine by getting into a pissing match."
        Reply to this
  • 10/8/2010 5:41:20 PM Ryan wrote:
    Eli:

    I'm sitting here scratching my head. All I see in the video prior to your arrest is a cyclist traveling on a not-so-busy street. Does taking a lane really look so odd and dangerous to non-cyclists? Maybe I've done it too often myself to judge anymore.

    -Ryan
    Reply to this
  • 10/15/2010 5:01:47 PM Maureen wrote:
    It sounds like since the judge didnt dismiss the citation, he thought you were in violation of the statute. I guess that means no more obstructing traffic.
    Reply to this
    1. 10/16/2010 8:19:57 AM Eli Damon wrote:
      Maureen: Really? I would expect better from you, you being an attorney. (1) No traffic was ever obstructed. (2) No citation of "obstructing traffic" was ever issued. (3) The denial of a motion to dismiss does not constitute a determination of guilt.
      Reply to this
  • 10/17/2010 2:55:08 PM Maureen wrote:
    The standard of proof for a motion to supress is probable cause. The standard of proof for a responsible finding for civil infraction is perponderance of the evidence, a far lesser standard. If the judge denied the motion, he found probable cause that justifies the charge. From your blogs, you have now been in front of Judge Payne on two criminal matters for the exact same thing in two different courts.

    Common sense dictates, if you keep on getting pulled into the court for the same thing...the reasonable person (a police officer) thinks your actions are unreasonable. How many other bicyclists in the area use your meathod of cycling? I have never seen any.
    Reply to this
    1. 10/18/2010 7:31:38 AM Ian Cooper wrote:
      The fact that you haven't seen any cyclists using the standard nationally approved methods of road use for cyclists only means that US cycling is in a very sad state. The fact that a cyclist keeps getting arrested for using such methods means the same thing.

      The methods that ignorant people generally believe cyclists should use are inherently dangerous, which is why the League of American Bicyclists adopted Effective Cycling techniques in the 1970s.
      Reply to this
  • 10/18/2010 10:30:58 PM Maureen wrote:
    Actually Ian, it looks like from the documentation the league provides, it actually states "keep to the right".

    For the league to establish a "standard nationally approved meathod" as you state, is quite difficult considering that laws differ from state to state (some of which specfically restrict cyclists from riding in the middle of the road) and that the league could actually be held liable if it makes "riding in the middle of a travel lane" standard riding practice and a cyclist gets injured follwing this practice.

    Again, common sense people. Car-BIG, bicyclist- small and vulnerable.
    Reply to this
  • 10/19/2010 6:37:38 AM Ian Cooper wrote:
    The league tells us to take the appropriate lane position based on the road condition. It says to ride on the right hand side of the road and within each state's law, which is not the same thing. In this particular case, the cyclist was riding according to the law.

    As to your 'car big, bicyclist small and vulnerable' argument, all I can say is this: if size or weight is what gives vehicles the right of way in this country, we're all in a lot of trouble, except maybe drivers of 18-wheelers. Would you suggest that minis get out of the way of bigger vehicles too? I mean they're small and vulnerable too when an 18-wheeler is behind them.

    Last time I checked, motor vehicles had steering wheels and brakes that allowed the driver a modicum of control, which is how smaller slower vehicles can operate safely around them. If that's no longer the case, let us know and we'll start working to remove those unsafe motor vehicles from the road.

    Somehow I think Maureen needs to return to driving school, since clearly she does not understand the concept of 'right of way'.
    Reply to this
  • 10/19/2010 6:47:53 AM Ian Cooper wrote:
    I just love this idea that cars are some kind of out-of-control monsters that cyclists should be avoiding. How drivers can think such an argument helps their cause is beyond me.
    Reply to this
    1. 10/19/2010 8:00:14 AM Eli Damon wrote:
      That is one common fallacy of bicycle safety that is at work here. Another is the notion that moving to the right edge of the lane would actually move a cyclist out of the path of approaching vehicles. However, the main reason to control a lane is if the lane is too narrow for a wide vehicle to overtake a bicycle safely within the lane. On the stretch of road in question, the lane was only 12' wide, definitely too narrow for safe overtaking within the lane. So moving to the right would not do anything to take a cyclist out of the path of approaching vehicles. (This is, in fact, taught by the League of American Bicyclists.)

      However, this argument began on the subject of a (non-existent) citation for obstructing traffic, not the subject of lane position. Don't get too worked up about arguing with Maureen. I realize now that she just keeps changing the subject and rarely responds to the information I point to or the arguments I make. She will just keep insisting that her uninformed intuition trumps any actual expertise in the field.
      Reply to this
  • 10/19/2010 7:32:19 AM Maureen wrote:
    Where do you get "according to law"? The judge refused to dismiss Eli's citation, which means there was probable cause to justify the charge. Hello, you must need to return to elementary school to learn your alphabet, words and sentances. Eli posted that himself.

    And no, Mini's can attain the speed limit, a bicyclist cannot. Even certain mopeds and motor scooters cannot attain the speed limit (which are prohibited from the center of the travel lane, rightfully so)

    You would really risk riding with distracted drivers driving 3000lbs or more of steel. At least in a car, if you are rear-ended, you will probably live to tell about it, if youre on a bicycle, you'll be lucky to be killed, otherwise you'll be eating through a feeding tube.

    Should long distance runners be allowed to use our roadways because of their right to travel? From Eli's speed, it looks like a long distance runner would pass him.

    Common sense prevails people.
    Reply to this
    1. 10/19/2010 8:28:15 AM Ian Cooper wrote:
      A bicycle is not required to drive at the speed limit. Nor is it necessary to do so to avoid harm, as long as the vehicles behind have brakes, a steering wheel and a sober person operating the vehicle. I know this because I have driven a bicycle in traffic for 40 years in 14 different countries and over 20,000 miles. I have not once been struck by vehicles or stopped by a police officer in all that time, because cycling in the road as a vehicle in traffic is perfectly safe and legal.

      Distracted drivers make mistakes, but they very rarely make mistakes that kill cyclists, unless the cyclists are riding as YOU advocate. About the only way that a cyclist who is driving as the LAB recommend is killed or injured, is if the driver who hits him is very drunk.

      A runner, last time I checked, was a pedestrian. A bicycle is a vehicle that has MORE right to the road than a car. Cyclists lobbied to build the roads you are licensed to drive on, and we'll be here long after motor vehicles are gone. So enjoy your time behind the wheel, but don't think it will last. In 20 years or so, you'll be riding a bike just like everyone else. You'd better get some practice in, because it seems like you'll need it.
      Reply to this
  • 10/19/2010 8:35:04 AM Ian Cooper wrote:
    By the way, the road in question has a 35mph limit. While it's not required that any vehicle operate at the speed limit, a cyclist can fairly easily do so, at least in this case. So the idea that cyclists can't operate at the speed limit is bogus.
    Reply to this
  • 10/19/2010 11:45:04 AM Ryan wrote:
    Maureen:

    I'm a utility cyclist (and reasonable person) living in western Massachusetts. I lack Eli's formal training in cycling technique but years of practical experience have taught me to cycle in much the same way. That is, I often take an entire lane.

    I'd like to ask you a question. If you were cycling on Route 9, where would you position yourself in the travel lane? I invite you to consider the next few paragraphs before you respond.

    It seems counterintuitive, but keeping to the far right of a narrow travel lane is more dangerous than traveling in the center of it.

    A lot of motorists will risk overtaking, given any clearance at all, even a few inches. This drastically increases the danger that a small error in judgment (amounting to the width of a side mirror) will cause a collision. I've posted numerous "real world" examples of this principle in action on my video blog.

    In contrast, when I take the lane, it leaves absolutely no doubt about the lack of clearance to pass. Every motorist who comes up behind me slows down and waits for an opportunity to pass safely. This usually amounts to the motorist driving 15 to 20 MPH for a few seconds.

    That's a perfectly safe and reasonable way to travel by bicycle. Indeed, if I and many other cyclists are guilty of any unreasonableness, it's that we don't take the lane often enough and end up exposed to greater danger because of it.

    -Ryan
    Reply to this
  • 10/19/2010 11:04:48 PM Maureen wrote:
    No. I would never even consider riding a bicycle on Route 9. I travel from Amherst to Northampton every day and cars move too fast and I see accidents almost daily on Route 9. And the stretch of road that Eli was stopped on, approaching the bridge was a 40. A bicyclist could not maintain that speed.

    It doesnt matter anyway, Judge Payne denied Eli's motion to dismiss the citation, which means there was probable cause for Ofc. Kuc's charge. I bet we see Eli here posting again, adding another blog to his "saga" when he deals with the police again for doing this same thing.

    As a defense attorney, I would normally be arguing for Eli, but he has been pushing buttons with law enforcement and with the courts over what he feels is right under the law. The law says that a bicyclist has to move over to facilitate passing. Taking a lane to force a car to slow and wait to pass is not facilitating passing.

    Clearly most people here, except for Tom and I don't really subscribe to common sense or to what the law says.

    I'd be willing to bet that Eli will end up wasting the court's time again by playing car on his bicycle.

    Free advice that I give to all of my clients;

    Remember that feeling you had in court wondering whether you were gonna win or not? Remember that when you decide to try your stunts again and think about if you want to go through it again.
    Reply to this
  • 10/20/2010 6:14:22 AM Ian Cooper wrote:
    Again, the speed limit is not a minimum permissable speed, and no vehicle has to go at the speed limit in order to avoid accident.

    The basic problem here is that Maureen's idea of common sense is not grounded in any knowledge of bicycling. If it was, she would at least know that bicycling safety is USUALLY unintuitive. This is not just my opinion, it's borne out by studies developed from real world accident statistics. And for a defence attorney she clearly has no grounding in law as it applies to bicycles. I just hope she never has to represent any cyclists, because with a defence attorney with her attitude and ignorance, there'd be no need for a prosecutor.
    Reply to this
  • 10/20/2010 6:36:59 AM Skip wrote:
    The "failure to keep right" statute says the following: Chapter 89: Section 4B

    Upon all ways the driver of a vehicle shall drive in the lane nearest the right side of the way when such lane is available for travel, except when overtaking another vehicle or when preparing for a left turn. When the right lane has been constructed or designated for purposes other than ordinary travel, a driver shall drive his vehicle in the lane adjacent to the right lane except when overtaking another vehicle or when preparing for a left or right turn; provided, however, that a driver may drive his vehicle in such right lane if signs have been erected by the department of highways permitting the use of such lane.

    From my reading of this statute, there is nothing restricting a slower moving vehicle from occupying the full "lane" of travel - which is probably why a magistrate dismissed the citation on 10/05.

    I still remember when farm vehicles would occasionally travel on Route 9 (after all Hadley was and still remains an agricultural community) and I fail to see how slow moving tractors are any different in the eyes of the law than bicycles in their use of a travel lane on a roadway. Maureen - what do you have against bicyclists?
    Reply to this
  • 10/20/2010 7:02:43 AM Ian Cooper wrote:
    Personally, I don't see what Maureen's point is. The charge of the traffic violation doesn't even exist on the law books. There is no law that says a bicycle should move to the right when being overtaken. Maureen seems to be arguing that her idea of what's safe (which, by the way, is actually unsafe) should be the law. If she's an attorney, then judging by her opinions here, she must be a particularly bad one. Lawyers don't make law, and at the very least they should know the law and use it to make their case. Maureen is doing neither here, which is a pity, because I'd love to hear a lawyer defend what the policeman actually did. From that we could learn something.
    Reply to this
  • 10/20/2010 10:27:32 AM Maureen wrote:
    MGL chapter 89 section 2 is what requires all vehicles to move to the right upon being overtaken.

    For the Officer, I would imagine that this is the reason for the stop and since he had dealings with Eli previously for the same offense and had relayed the dangers to him, he felt as though the Disorderly charge was appropriate. Secondly, the wiretapping statute strictly prohibits the secret recording of any conversation, including a police traffic stop. And from seeing the above video, Officer Kuc asked Eli about the camera inquiring what it was. If he didn't feel as though it was obvious that it was a camera and that it was recording his voice, that would satisfy the requirements of the statute. If it got to the motion to supress, which it obviously did, that means that a clerk of the court also felt that the elements of the crime fit.
    Reply to this
  • 10/20/2010 1:14:56 PM Skip wrote:
    Maureen - lets both read that section:

    Section 2. Except as herein otherwise provided, the driver of a vehicle passing another vehicle traveling in the same direction shall drive a safe distance to the left of such other vehicle and shall not return to the right until safely clear of the overtaken vehicle; and, if the way is of sufficient width for the two vehicles to pass, the driver of the leading one shall not unnecessarily obstruct the other. If it is not possible to overtake a bicycle or other vehicle at a safe distance in the same lane, the overtaking vehicle shall use all or part of an adjacent lane if it is safe to do so or wait for a safe opportunity to overtake. Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on visible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.

    The first part of this law explicitly states that the overtaking vehicle must take care during passing to the left. Note the section on bicycles - "If it is not possible to overtake a bicycle or other vehicle at a safe distance in the same lane, the overtaking vehicle shall use all or part of an adjacent lane if it is safe to do so or wait for a safe opportunity to overtake."

    Since Route 9 is two lanes for much of the stretch that Eli was riding on, the overtaking vehicles are "required" to take care during passing. If anything, the office should have been citing cars for passing too close to Eli...
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  • 10/20/2010 1:21:13 PM Dan Fazzini wrote:
    This language is likely from the UVC and is similar to other statutes. The "give way" portion is NOT for having a vehicle leave the roadway to give preference to the faster vehicle behind, but is to prohibit a vehicle in the right lane for "blocking" the passing vehicle once they are passing and also to indicate that they should move to a lane to the right on a multi lane road, nowhere does it say they must leave the roadway or share the lane.

    However, what the PD and judge is likely upset about (whether we agree or not) is that some of the video shows a reasonable ridable shoulder from their perspective, and this is the REAL issue at hand.
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    1. 10/20/2010 2:44:28 PM Eli wrote:
      Dan: I have actually been looking for documentation of the meaning of the "give way to the right" language. Do you know of any? If it is from the Uniform Vehicle Code, then I would think that someone, somewhere would have written something about it.
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  • 10/20/2010 3:37:23 PM Skip wrote:
    I would argue that the shoulder on Rte. 9 is completely inadequate for riding in. Particularly during the time of year when the incident occurred - March. All sorts of debris builds up on the sides of roads in New England from snow removal operations, and riding in a shoulder is a constant hazard. Much better to ride consistently in the lane than try and dodge in an out of a shoulder with sand and gravel. In addition, there is absolutely no reason why the shoulder should be used under such conditions, and there is no mandate in the vehicle code which requires a bicycle to ride there.
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  • 10/20/2010 10:57:10 PM Maureen wrote:
    Skip- There is a specific section for bicycles, you are correct. But this does not say that a cyclist can occupy the whole right lane. And it still says that they must "give way to the right". What it says is what it says.

    Eli- How else could you interpret that?

    Dan- I think thats probably a good call. There are some places where there is are several feet. And I'm sure Eli will say that there is debris and that its "undesirable" to ride there. I'd rather be running over debris then getting hit by a car. But then, I could avoid both and use the bike path...sorry M.U.P....
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    1. 10/22/2010 11:10:02 PM Eli wrote:
      I have been trying to research that phrase and have found very little on it, so I am not entirely sure how it should be interpreted. However, any interpretation it is given must be identically applicable to drivers of all vehicles. It could be interpreted, as Dan Fazzini suggests, to mean that a driver should not move to left while being overtaken by another driver. This accords with all right-of-way rules and all principles of traffic safety. It could be interpreted, as you suggest, to mean that when a driver is approached from behind by another driver, on any road, the first driver must move to the right edge of the road (or beyond the right edge of the road). However, this interpretation has several problems.
      1. It is contrary to the basic rules of the road, which give the right of way to the leading driver and requires the driver approaching from behind to move left to overtake the leading driver.
      2. It would be horribly inefficient, since, in most cases, the driver approaching from behind can overtake the leading driver on the left without the leading driver moving to the right.
      3. It would make driving impracticable for all slower than average drivers, since they would need to incessantly pull over when other traffic was present on the road.
      4. It would be horribly dangerous, since it would require drivers pay great attention to the road behind them, which would detract from the attention paid to the road ahead of them. It would also give a driver no control over the space to the sides of his or her vehicle.
      5. It is contrary to all conventions of driving and traffic law enforcement. I cannot remember ever observing a driver move to the right when approached from behind by another, and, with the exception of a few cases involving cyclists, I have never heard of a driver being penalized for failing to do so.
      It could be, as transportation engineer Bob Shanteau suggested in another forum, that the statute was written before it was common for roads to be built to accommodate continuous two-way traffic, let alone continuous overtaking. Your interpretation would make sense on a narrow, unlaned road with only a few vehicles present, which would have been the norm at that time. So the statute could be interpreted as you suggest but to only be applicable on roads that are too narrow to accommodate overtaking at speed.
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  • 10/24/2010 2:36:48 PM Maureen wrote:
    You talk so much about the rules of the road, have you ever driven a motor vehicle or even have a drivers license?
    Reply to this
    1. 10/24/2010 9:17:57 PM Eli Damon wrote:
      How is that relevant? The rules are the same for everyone, and were developed before motor vehicles existed. The answer is no, by the way. I could make a similar criticism of you for not having driven a bicycle, which is a good deal more relevant to this discussion. In addition to my experience, I also have undergone training in the field, I study it continually, and I correspond frequently with others on the subject, including many whose credentials greatly outshine mine. I do not understand why you feel so certain about your conclusions regarding a field that you are unfamiliar with, especially since your conclusion is contrary to the consensus of experts in the field. I implore you to look at the work on cycling safety for yourself. You can start with MassBike's Same Roads, Same Rules literature (<http://www.massbike.org/srsr/>), which is endorse by the Department of Transportation and the Executive Office of Public Safety and Security. I also recommend Bicycling Street Smarts by John Allen (<http://www.bikexprt.com/streetsmarts/usa/index.htm>) for a short introduction, which is endorsed by the transportation departments of Arizona, Florida, Idaho, Ohio, and Pennsylvania. Another excellent book on the subject, my favorite in fact, is Cyclecraft by John Franklin (North American edition), which is endorsed by the national cycling training programs of the United States of American, Canada, and the United Kingdom. You can read key sections of these works in the document at <http://eli-damon.info/documents/lane%20position%20material.pdf>.
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  • 10/25/2010 1:56:21 AM Skip wrote:
    Maureen - I think you implication here is that because Eli hasn't passed a drivers test that he never had to "prove" his competency or knowledge of safe driving and the vehicle code to the relevant Massachusetts authorities. I think this is a spurious argument, particularly considering the fact that a drivers license, in least in my day, could be obtained by the time one was 16-1/2 (I got my mind when I was 17), and the renewal process for the rest of your life after that is only to verify that your eyesight is sufficient to read a few letters on a wall under office lighting.

    In most cases, I think utility bicyclists like Eli have a much more complete understanding of vehicle code and safe driving techniques, largely because the consequences of poor driving are greater. Driving in the lane on a bicycle is safer. People will see you and treat you like a slow moving vehicle rather than trying to pass unsafely. But I ask you - why should law-abiding cyclist be penalized for bad behavior of a small minority of motorists? Shouldn't we just address the root issue, which is dangerous road users in general?
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  • 10/26/2010 12:52:40 AM Ryan wrote:
    "No. I would never even consider riding a bicycle on Route 9." -Maureen

    Maureen:

    Please answer the question. What is the "common sense" lane position for bicycle travel on Route 9?

    You obviously believe Eli's cycling technique is unlawful. Will you at least make some reasonable effort to describe the lawful technique he should be using? Or are you suggesting that all cycling on Route 9 is unlawful?

    -Ryan

    ---------------

    "However, the traffic ticket was dismissed at a hearing on 10/05/2010 before a magistrate." -Eli

    Eli:

    Didn't the magistrate dismiss the ticket?

    -Ryan
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  • 10/26/2010 10:28:25 AM Maureen wrote:
    I find it hard to believe that the magistrate dismissed the case after the Judge denied the motion. Were the facts even heard at your hearing Eli?

    Ryan, as simple as the law says, cyclists are not relived of the duty to facilitate overtaking and must yield to overtaking traffic. Furthermore, I'd use the rail trail when I could. Secondly it depends on where on Rt.9, there are some places with plenty of room on the shoulder, others, not so much. Again, why is Eli the only one out there riding like this. I see sport cyclists on side of the road (mind you these people ride hundreds of miles at speeds of close to 30mph). Why are they off to the side, common sense maybe? Or is Eli the only right one and everyone else is wrong. But I would still not ride a bike on rt 9. Cars move too fast there and I value my life.

    The purpose of "assertive" lane position is to "force" other vehicles to slow and pass by other means. Last I checked, it's not the cyclists job to enforce the safe passing laws.

    And in my final post (because no matter what the law says and common sense dictates, everyone else believes that riding a bicycle with state highway traffic is smart), Eli's actions are clearly not about safety, but only about advocacy. If this were truly about safety, he would recommend the use of other means away from motor vehicles when possible. As when you play with fire, you get burned. If you play in traffic.....

    Eli, use common sense my friend as your perceived inconvenience of using a multi-use-path and your wish to "drive" your bicycle down Rt. 9 may be the difference of getting to your destination or not. If not, your future will certainly include visiting our local courthouses among those defendants keeping one of my brother or sister defense attorneys gainfully employed. But considering how much time you spend sending letters to so many "uninformed" or "misguided" people, I'm sure that youre income is such to where we as taxpayers are paying for your defense fee's anyway. Thanks for wasting our time and money in a financial crisis with your skewed views of "safety".
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    1. 10/26/2010 2:36:55 PM Ian Cooper wrote:
      Since she keeps bringing up the idea that it's common sense to ride out of the roadway, I'm just going to refer Maureen to the following:

      http://www.cyclecraft.co.uk/digest/research.html

      ... which shows that common sense (that cycling out of the road is safe) and what's actually safe are two very different things.
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  • 10/26/2010 2:59:26 PM Ian Cooper wrote:
    I should also point out the following survey:

    Moritz. Transportation Research Board, US, 1998 (http://www.bicyclinglife.com/Library/Moritz2.htm). 2,000 cyclists surveyed. Major roads were found to be SAFER than minor roads, which were in turn safer than every kind of off-road cycle infrastructure.
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  • 10/26/2010 10:16:12 PM Ryan wrote:
    CHAPTER 89 Section 2
    Except as herein otherwise provided, the driver of a vehicle passing another vehicle traveling in the same direction SHALL DRIVE A SAFE DISTANCE TO THE LEFT of such other vehicle and shall not return to the right until safely clear of the overtaken vehicle; and, if the way is OF SUFFICIENT WIDTH for the two vehicles to pass, the driver of the leading one shall not unnecessarily obstruct the other.

    ------------

    Maureen, what do you consider to be the minimum safe distance for a motorist to pass a cyclist in the same lane? 3 feet? 2 feet? 6 inches? A dozen US states have defined 'minimum safe distance' as anywhere from 3 to 5 feet. Connecticut defined it as 3 feet last year. Massachusetts has not defined a specific distance.

    Note that Chapter 89 specifies that when it comes to passing, the motorist 'shall' pass safely IF the roadway is wide enough.

    Imagine a travel lane that is 12 feet wide. The cyclist is 1 foot from the curb. The cyclist is 3 feet wide. Let's assume a minimum safe passing distance of 3 feet. The average car width is 6 feet. [1+3+3+6 = 13 feet]. I seriously doubt the lane where Eli was pulled over was 13 feet wide. It looks more like 10 or 11 feet.

    This means the lane is too narrow for a car to pass a cyclist at a safe distance, which makes it unlawful for any motor vehicles to overtake Eli in the same lane, no matter where in the lane he chooses to operate his bicycle.

    Or are you suggesting Massachusetts lawmakers intended for Eli to accommodate dangerous and illegal passing? If so, doesn't that also mean you are legally required to accommodate pull over or speed in your car to enable a tailgater to break the speed limit? If you refuse to do so, doesn't that mean, by your own argument, that you're enforcing the law?

    -Ryan

    Source: http://www.3feetplease.com/Advocacy.html
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  • 10/27/2010 12:23:07 AM Eli Damon wrote:
    ‎"Anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that 'my ignorance is just as good as your knowledge.'" - Isaac Asimov
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  • 10/27/2010 7:10:27 AM Ryan wrote:
    Correction to my last post: "If so, doesn't that also mean you are legally required to pull over or speed in your car to enable a tailgater to break the speed limit?"
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