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Legally Speaking- Questions about the Cupertino crash

By Bob Mionske

Legally Speaking with Bob Mionske- Questions about the Cupertino crash …

Published Mar. 19, 2008


Dear Readers;

Tragedy struck the San Francisco Bay Area cycling community last week in a collision that killed two cyclists, and sent a third to the hospital with serious injuries.

According to reports published in local newspapers and press releases from the Santa Clara County Sheriff’s department, this is what happened:

On Sunday morning, March 9, a group of cyclists from was out training on Stevens Canyon Road in Santa Clara County, in the hills west of Cupertino. There were about a dozen cyclists, most of them members of the Third Pillar Racing Team; the cyclists were trailed by two team coaches in a van.

Three of the cyclists had pulled away, and were riding single file about 10-20 seconds ahead of the main group; one of the cyclists, Matt Peterson, 29, of San Francisco, was a member of Roaring Mouse Cycles Team. The other two cyclists were Kristy Gough, 30, a San Leandro resident and member of the Third Pillar Racing team and Christopher Knapp, 20, a German national and member of the FC-Rheinland-Pfalz Racing Club.

At about 10:25 A.M., a Santa Clara County Sheriff’s Deputy heading the opposite direction in his cruiser crossed the double yellow line and drove head-on into the three cyclists. Matt Peterson was killed instantly; Kristy Gough’s left leg was severed, and Christopher Knapp sustained a broken arm and leg. The three cyclists were five minutes away from their finish at Stevens Creek Reservoir when they were struck.

Arriving at the scene moments after, Third Pillar teammate Daniel Brasse, 41, of San Mateo described the chaotic scene as “screams of pain.”

The sheriff’s deputy, 27 year old James Council, who eyewitnesses later reported had been speeding and driving erratically for several miles, was reported to be “walking around in a daze” following the crash, saying that he “must have fallen asleep.”

As one cyclist was lying dead in the road, another lay dying, and a third was writhing in agony, the Deputy is reported to have paced the road, saying “my life is over” and “my career is over.”

It was left to Brasse to administer first aid to Kristy Gough. His heroic efforts repeatedly kept her from slipping away as they waited for a helicopter to airlift her to Stanford; with his help, she valiantly clung to life, only to pass away later, at Stanford.

As Brasse was working to save Kristy’s life — one look told him that Peterson was already gone — Council continued to pace in a daze, telling gathering bystanders “I must have fallen asleep,” until another deputy steered him away from the gathering bystanders and advised him to stop talking.

Questions raised …

Now I think we all know that many people might have the same reaction in a tragic accident — but this wasn’t just anybody, this was a law enforcement officer, trained to handle emergencies. And the fact that he’s a law enforcement officer has raised the question of whether the investigation of this crash will be handled any differently than if the driver had not been a law enforcement officer.

Because the crash involved one of their own, the Sheriff’s Office turned the investigation of the crash over to the California Highway Patrol. And inexplicably, although the policy in any officer-involved crash is to test for blood alcohol level, the Highway Patrol did not test Deputy Council. Nevertheless, the Sheriff’s office stated that they are “within the letter of the policy,” implying that a blood sample has been taken.

And in fact, it was later confirmed that a blood sample had been taken, and submitted to the Highway Patrol. However, even though a blood sample was taken, it’s troubling that the investigating agency did not take the sample. It’s equally troubling that the deputy left the scene of the crash before accident investigators arrived.

Think for a moment about the protocols being followed (or not being followed) here. If this were a UCI race, would the teams be allowed to control the samples of their team members? If UCI rules establish clear chain of custody protocols for urine samples in a race, why are chain of custody protocols for blood samples in a fatal collision less stringent?

Are we as a society really more concerned about doping racers than we are about impaired drivers? Does that really make any sense? And if the driver were not a deputy sheriff, would the Highway Patrol decline to conduct a sobriety test, or take a blood sample? If the driver were not a deputy sheriff, would the Highway Patrol give the driver the option to control the chain of custody of a blood sample?

The reporter covering this crash for the San Jose Mercury News asked those same questions, and surprisingly, the answer was yes, it is standard procedure not to test for alcohol in a fatal collision, unless DUI is suspected. But in a crash like this, where the driver being investigated left the scene before investigators arrived, how would anybody be able to determine whether DUI was suspected? And the fact that he left the scene raises another question — would you or I be allowed to leave the scene of a fatal collision before investigators arrived? Would you or I be assisted in leaving by law enforcement personnel? Again, the Mercury News reports that is also standard procedure — something I think most of us find difficult to believe.

These are important points, because following the accident, news surfaced that prior to his employment with the Sheriff’s Office, Council had been charged with two counts of drunk driving and “exhibition of speed,” which he successfully pleaded down to an admission of guilt on the exhibition of speed charge. Although there is no indication that Deputy Council had been drinking prior to this collision, witnesses did report his speeding and erratic driving, and Deputy Council himself has no explanation, beyond “I must have fallen asleep,” for how the collision occurred.

Could he have fallen asleep? Driving while drowsy is certainly an all-too-common phenomenon, right up there with distracted driving and DUI. All we know is that Deputy Council had worked a 12 ½-hour shift the day before, and had ten and a half hours off before the start of another 12 ½-hour shift at 6 a.m., 4 1/2 hours before the fatal crash.

In the days following the crash, the curtain was torn away from law enforcement’s “dirty little secret we don’t tell people about” — most officers work long, difficult shifts, with fatigue a constant companion. Departmental pressures force more cops to work longer hours; as one officer put it, “they don’t give a crap about how tired we get.”

Following the crash, Sheriff Laurie Smith tearfully accepted departmental responsibility for the crash. But the damage had already been done. Will the Sheriff’s Department just pay out for its liability in this crash, and continue to put drowsy deputies behind the wheel? Or will this crash be the impetus for substantive road safety improvements, beginning with overhauling exhausting work schedules that lead to exhausted law enforcement officers?

Media bias

In a follow-up article, the San Francisco Chronicle examined the rise in cycling fatalities in the Bay Area. Although the number of cycling accidents is down overall, the number of cycling fatalities has risen, indicating that the accidents that are occurring are increasingly of the more dangerous variety.

In light of this data, cyclists cannot be expected to be solely responsible for their own safety. Although impaired driving has become socially unacceptable, with high penalties attached to convictions, half of all cycling fatalities involve alcohol, and there are still almost no efforts to control either distracted driving or speeding, both of which play major roles in car-on-bike crashes.

Instead, safety is seen as the responsibility of the cyclist — witness the growth of mandatory helmet laws while distracted driving and speeding remain accepted behaviors — and when a cyclist is injured or killed, blame is inevitably shifted from the driver to the cyclist . It happened with Lloyd Clarke, it happened with Tracey Sparling, it happened with Brett Jarolimek.

And guess what? It happened again last week in Cupertino. In reporting the crash, the San Jose Mercury News exhibited the sort of media bias that I’ve discussed in Bicycling & the Law. First, the Mercury explained that “The opportunities for hill climbing and downhill coasting along Stevens Canyon make the road tempting for cyclists.” This is a twist on the attitude that many non-cyclists share: “What were cyclists doing there in the first place”? Would the Mercury have explained why an automobile was being driven along that road? It seems doubtful, and yet it seemed perfectly reasonable to the Mercury to report that the road is “tempting” to cyclists.

What came next is all-too familiar to cyclists: The Mercury reported that “The group collided with the deputy’s car.” In other words, even though they were riding on the right side of the road, single file and in the bike lane, and the deputy had crossed the double yellow line before going off the road and up an embankment on the other side of the road, the cyclists collided with the deputy, in the eyes of the Mercury News.

That was only the beginning of the biased media coverage. The Mercury inexplicably went on to discuss cyclists riding two abreast. Well, it’s not really inexplicable, if you understand that there is an underlying anti-cyclist bias in almost every media account of cycling. But what is remarkable about the Mercury’s discussion of cyclists riding two abreast is that 1)riding two abreast is legal, and 2) had absolutely nothing to do with the crash, as the victims were riding single file

The Mercury News wrapped up its discussion of at-fault cyclists with one cyclist’s observation that “I’ve seen bicyclists who ride crazy, and I’ve seen cars that go too fast.” Lost in all of the Mercury News’ discussion about “crazy” cyclists “tempted” by hilly roads, and riding “two abreast,” was one simple fact: the three cyclists were riding single file in the bike lane, on a straight, safe stretch of road, and were hit by a car that had crossed the double yellow line, colliding with them head on at an unsafe speed. According to news reports, there were no skid marks on the roadway, indicating that the deputy never even applied his brakes.

Missing in the Mercury’s sensationalist “blame the victim” coverage of the crash was any discussion of the kinds of dangers cyclists regularly face — inattentive driving, distracted driving, and drowsy driving — even though one of these real dangers was almost certainly behind last week’s crash.

It’s still early in the investigation, and many questions remain to be answered — questions that may take some time answering, because Deputy Council has been advised by his attorney not to talk with the investigation team from the California Highway Patrol, which is investigating. But there are a few things we all know: we lost two amazing, talented cyclists last week, and it’s time that we as a society get serious about road safety. Our lives are depending on it.

Bob

(Research and drafting provided by Rick Bernardi, J.D.)

 

This article, Questions About Cupertino, was originally published on VeloNews on March 19, 2008.

Now read the fine print:
 
Bicycle and the Law, Bob MionskeBob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
 
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
 
Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
 
If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
 
Important notice:
The information provided in the "Legally speaking" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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