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Old 01-17-08, 04:41 PM   #1
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The Blind Spot of Justice

Portland DA fails to prosecute yet another cyclist-killer

Blind Spot of Justice?
Prosecutors Decline to Charge Driver Who Killed Cyclist Tracey
BY AMY J. RUIZ
http://www.portlandmercury.com/portl...category=34029

Tracey Sparling put herself in harm's way last October 11, the day she hopped on her bicycle and rolled down SW 14th toward class at Pacific Northwest College of Art—at least according to some media accounts.

The 19-year-old woman was obeying the law, riding in the bike lane, and stopping at a red light on W Burnside. In the lane to her left, Timothy Wiles piloted a cement truck carrying 40,000 pounds of concrete. When the light turned green, he turned right. "As he did so, Ms. Sparling apparently moved forward a short distance... and was run over by the right front wheel of Wiles' truck. She was then run over by one or both sets of rear wheels," according to a memo from Senior Deputy District Attorney Chuck Sparks.

Sparling died in the street that day, beneath the Crystal Ballroom's neon marquee.

The following day, hundreds of cyclists rode in a slow, nearly silent procession from the Burnside Bridge to the site of her death.

A day after that, Lt. Mark Kruger of the Portland Police Department's Traffic Division supplied excuses for the driver, to the Oregonian.

"Motorists have been conditioned for 100 years that no one is going to pass them on the right," Kruger told the Oregonian. "Spring forward to where we are today, where we've added bike lanes to the mix, and some bicycles are traveling at high speed. It can lead to significant, deadly conflicts, as we saw Thursday.

"Bicyclists expect and are trained by activists groups that when you've got the bike lane, you can do what you want to do. We have a lot of these collisions that don't end in fatalities, but they are stubborn to the point that they won't give up ground for the sake of safety."

Until last Thursday, January 10, that was effectively the end of the story in the public eye: Sparling put herself in harm's way, and suffered the consequences.

"They always blame the cyclist," says Susie Kubota, Sparling's aunt. Kubota has spoken at street safety rallies, and in support of City Commissioner Sam Adams' transportation plan, which includes funds for bike-safety improvements. "The police shouldn't make it sound like drivers don't need to do anything differently—like it's all cyclists' fault," Kubota says.

"You're legally abiding by a system the city has established, and not only do you get killed," says Jonathan Maus, of BikePortland.org, "but people insinuate that you played a role in your own death."

THE BLIND SPOT

On Thursday, January 10—nearly three months to the day of Sparling's death—Senior Deputy District Attorney Sparks issued his memo, outlining the decision not to prosecute Wiles for criminal homicide.

The news wasn't surprising. Of the six cyclists killed on Portland's streets in 2007, four died following collisions with vehicles. The driver who collided with Nick Bucher on SE Stark in February wasn't charged or cited, though he'd been drinking (but wasn't over the legal limit). Two women involved in the May hit and run on SE Foster that claimed Jerry Hinatsu's life received two months' jail time in a plea deal, but were not found guilty of felony hit-and-run charges. The driver in Sparling's case hasn't been charged or—to date—cited. And five days after the DA released the Sparling decision, he announced that Bryan Lowes, the man driving the garbage truck that crushed cyclist Brett Jarolimek last October 22, would not be charged, either.

Sparks' memo outlines why he opted not to charge the driver in Sparling's case. In short, the driver didn't perceive Sparling's presence next to his truck, so turning wasn't criminally negligent.

"[The driver, Timothy] Wiles arrived at the intersection before Ms. Sparling and came to a stop, waiting to turn right. Wiles did not see Ms. Sparling as she approached his stopped truck, nor did he see her as he went into his turn," Sparks wrote in his memo. "Ms. Sparling stopped in the bike lane near Wiles' right front wheel, and was, due to her location and diminutive stature, not visible to Wiles; she was, through no fault of her own, in the driver's blind spot....

"The relevant standard is criminal negligence. Criminal negligence is the failure to be aware of 'a substantial and unjustifiable risk that the result will occur or the circumstance exists,' with the risk being 'of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.' The evidence must prove beyond a reasonable doubt that Mr. Wiles acted with criminal negligence for the state to prosecute. After reviewing all witness statements, the scene evidence, and the toxicology reports I conclude that Wiles' failure to perceive Ms. Sparling prior to his turn was not sufficient to charge him with criminally negligent homicide."

While it's clear that Sparling was in Wiles' blind spot (and, according to Sparks' second memo, Jarolimek was in Lowes'), Sparks' memo does raise the question of how aware drivers must be of what could be in that space—especially when it overlaps a bike lane. Shouldn't the driver have assumed someone could be there, and waited for bike traffic—visible or not—to clear?

The DA has to make decisions "from a criminal negligence standpoint," Sparks says. "Is it provable beyond a reasonable doubt that [the driver] acted with criminal negligence? I don't think it is." And it's not his place, he points out, "to file charges to send a message" to every other driver on the road. "You can't use a human being to do that."

The blind-spot issue "leaves us at a gray, unanswered place," says Maus. "As a society, you have a situation where people can be legally operating their vehicle on a city street and one of them can kill the other or do something that causes the death, and there's absolutely no mechanism of accountability.

"If that's the conclusion we come to, that you have to know the person's there, you have to be able to perceive that someone's there, to be accountable for moving into the right of way..." Maus says. "If that's the conclusion that we're going to move forward with, what does that say about us?"

WHO'S ACCOUNTABLE?

The Sparling case is now on a police investigator's desk, and that investigator will decide whether or not to cite the driver (cops don't cite drivers on the scene of fatal collisions, following a district attorney directive).

"I don't think we really expected criminal charges, necessarily," says Sparling's aunt Kubota. But she's holding out hope that the police will now issue a citation for failing to yield to a cyclist in the bike lane.

"Even though it's a very minor infraction, I at least want to know there's something. Because there's got to be something to make drivers realize there's a consequence—no matter how minor—to them personally" when a cyclist is injured or killed.

Sparling's parents were unavailable for comment by press time; Kubota does not know if they plan to pursue legal action, but Sparling's father brought an attorney with him when he arrived at the district attorney's office on January 10 to hear the charging decision.

If the police don't issue a citation, Maus says the police need to find a creative solution for accountability.

"We need some sort of middle ground. Compromised accountability that doesn't hang someone publicly, but shows the public that a mistake was made, and it was serious," he says, suggesting a new kind of citation. "Call it something different. If you violated a law and violated someone's right of way that they were legally occupying, then that's a mistake for which you need to be legally held accountable."

Meanwhile, without criminal charges—and in the absence of a citation—the public perception remains: Sparling's death was her own fault, for hopping on a bike that day and using a bike lane in a legal manner.

And a local rebuttal

Quote:
Originally Posted by Elly Blue on Shift list
From the Merc article: "The DA has to make decisions "from a criminal negligence standpoint," Sparks says. "Is it provable beyond a reasonable doubt that [the driver] acted with criminal negligence? I don't think it is." And it's not his place, he points out, "to file charges to send a message" to every other driver on the road. "You can't use a human being to do that.""

Interesting to hear this, considering the DA's involvement and persistence a year and a half ago in pursuing Dat Nguyen and Jeff Smith to the full extent of the law for the grave crime of leaving a bicycle lane in preparation for turning left. Not to mention that "sending a message" is exactly the rationale given for ticketing cyclists at the not-so-dangerous Ladd's Circle.

I know representatives of the police force and the justice system read this list, so I try not to get carried away with accusations of bias, but I call foul here. Chuck Sparks, you are in fact sending plenty of messages, and we get them loud and clear. And so do the all the people out there who think cyclists don't belong on the road and they don't need to drive safely around us or check their blind spots. Thanks a lot.

Elly
https://lists.riseup.net/www/arc/shi.../msg00253.html

Story at BikePortland.org
http://bikeportland.org/2008/01/10/d...sparling-case/

Last edited by randya; 01-17-08 at 07:25 PM.
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Old 01-17-08, 05:21 PM   #2
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"A day after that, Lt. Mark Kruger of the Portland Police Department's Traffic Division supplied excuses for the driver, to the Oregonian.

"Motorists have been conditioned for 100 years that no one is going to pass them on the right," Kruger told the Oregonian. "Spring forward to where we are today, where we've added bike lanes to the mix, and some bicycles are traveling at high speed. It can lead to significant, deadly conflicts, as we saw Thursday.

"Bicyclists expect and are trained by activists groups that when you've got the bike lane, you can do what you want to do. We have a lot of these collisions that don't end in fatalities, but they are stubborn to the point that they won't give up ground for the sake of safety."


I wouldnt even know where to start. God, Allah, Xanu....whoever, help Portland !
This guy is insane !

I can only hope Tracy's family and friends get some closure at some point.
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Old 01-17-08, 05:37 PM   #3
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Originally Posted by -=Łem in Pa=- View Post
"A day after that, Lt. Mark Kruger of the Portland Police Department's Traffic Division supplied excuses for the driver, to the Oregonian.

"Motorists have been conditioned for 100 years that no one is going to pass them on the right," Kruger told the Oregonian. "Spring forward to where we are today, where we've added bike lanes to the mix, and some bicycles are traveling at high speed. It can lead to significant, deadly conflicts, as we saw Thursday.

"Bicyclists expect and are trained by activists groups that when you've got the bike lane, you can do what you want to do. We have a lot of these collisions that don't end in fatalities, but they are stubborn to the point that they won't give up ground for the sake of safety."


I wouldnt even know where to start. God, Allah, Xanu....whoever, help Portland !
This guy is insane !

I can only hope Tracy's family and friends get some closure at some point.
You can start by giving us a hint of why you disagree with anything stated in the part you quoted.

Surely you cannot argue with the assertion that "Motorists have been conditioned for 100 years that no one is going to pass them on the right," unless you're going to try to take it out of context (which is: motorist is in rightmost lane).

"Some bicyclists traveling at high speed"... certainly true. Though in this case I don't believe that was a factor. Here, the through cyclist went straight when the light turned green, while the right-turning truck driver to the cyclist's left also went at the same time.

While bike advocates might not explicitly say you can do what you want when in a bike lane, that is the implication of bike lane advocacy, whether it's realized by their proponents or not. The main reason bicyclists feel "comfortable" in bike lanes is because they believe this to be true. It is the promise of bike lanes that they are safe (and thus comfortable) when in the bike lane. This notion is only reinforced by wacky laws such as what Oregon has with respect to right turns and bike lanes.
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Old 01-17-08, 05:46 PM   #4
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I KNOW that I'm going to get hated for saying this, but...

To me, this was merely a sad happenstance -- a misaligning of the planets, if you will. He didn't see her, she didn't think he'd turn.

If it's a big truck, the driver usually can't even see a normal-sized car next to the front right wheel, let alone a cyclist.

Yeah, she could have moved more quickly, but then she might've been run over by the front left wheel instead.

The only way that either party could be at fault, IMO, depends on whether the truck had its turn signal on. If it were, she would have expected the truck to turn right, and -- hopefully -- she would have expected to either make herself plainly visible to the driver (that is, make eye contact); or, if she couldn't be seen, she'd expect to stay clear while the driver blindly made the corner.

If the driver didn't have his turn signal on, then she wouldn't have even guessed that he was going to turn right, and his turn would have taken her by surprise (to say the least). I would consider him negligent if he failed to signal his turn.

According to the PDF of the report, there was no conclusive evidence as to whether he had his signal on or not.

He could have checked his side mirrors more frequently; she could have drawn more attention to herself by having a front light and staying within sight (either back far enough to be seen in the mirrors or far enough in front to be seen over the hood).

What would I have done if I was in either position? Honestly, I don't rightly know. All I know for sure is that blind spots suck, both from the driver's seat and from a bike.
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Old 01-17-08, 05:49 PM   #5
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"You can start by giving us a hint of why you disagree with anything stated in the part you quoted."


I dont have the time or intestinal fortitude to do the A&S petty semantisizing
and hypothetical situationing stuff......

This women was doing everything 'the system' required her to do in Portland and
was killed for it. How can you not understand that ?
Are you "Motorists can be trained to move around you if they see you in advance"
HH, supporting the cops theory that motorists should not be held liable for something
they have 'trained' themselves to do ?
Ok, well Im trained to run lites and ride the wrong way as I see fit, so it must be OK, right ?
If you are disagreeing with me I can expect to see you taking issue with your disciple about taking the lane ?
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Old 01-17-08, 05:53 PM   #6
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I dont have the time or intestinal fortitude to do the A&S petty semantisizing
and hypothetical situationing stuff......

This women was doing everything 'the system' required her to do in Portland and
was killed for it. How can you not understand that ?
Are you "Motorists can be trained to move around you if they see you in advance"
HH, supporting the cops theory that motorists should not be held liable for something
they have 'trained' themselves to do ?
Ok, well Im trained to run lites and ride the wrong way as I see fit, so it must be OK, right ?
You're not being reasonable, Lem.
Equating "trained to run lites" with "trained to assume no one is to your right when you are in the rightmost lane" is unreasonable.
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Old 01-17-08, 05:56 PM   #7
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Ok, I am unreasonable, I will accept that and work on it.......

But, relatively/geographically speaking.....are motorists in Portland,
one of the most cycle friendly areas in the western hemisphere really not
conditioned to be aware of cyclists on thier right ? I think not.
Maybe in a place where there are no cyclists, but in Portland ??
I have trouble with that.
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Old 01-17-08, 05:57 PM   #8
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"[The driver, Timothy] Wiles arrived at the intersection before Ms. Sparling and came to a stop, waiting to turn right. Wiles did not see Ms. Sparling as she approached his stopped truck, nor did he see her as he went into his turn," Sparks wrote in his memo. "Ms. Sparling stopped in the bike lane near Wiles' right front wheel, and was, due to her location and diminutive stature, not visible to Wiles; she was, through no fault of her own, in the driver's blind spot....
If the driver had gotten "as close as is practical to the right curb or edge of the road" before turning right as the Oregon Driver Manual (page 34) says to do, then Ms. Sparling wouldn't have been able to occupy the same space. Or am I missing something?
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Old 01-17-08, 06:05 PM   #9
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We are assuming that the cement truck driver had his turn signal on when she rode up on his right side.
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Old 01-17-08, 06:06 PM   #10
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If the driver had gotten "as close as is practical to the right curb or edge of the road" before turning right as the Oregon Driver Manual (page 34) says to do, then Ms. Sparling wouldn't have been able to occupy the same space. Or am I missing something?
Then there's the definition of "the edge of the road" -- was it the curb, or was it the painted line of the bike lane?

I don't know; I just don't like to see either person (driver or cyclist) getting roasted over this.
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Old 01-17-08, 06:08 PM   #11
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We are assuming that the cement truck driver had his turn signal on when she rode up on his right side.
Maybe he did, and maybe he didn't. One witness said he didn't think he saw the turn signal, but he wasn't sure; another trucker and a cop saw that the truck's turn signal remained flashing after its hazard flashers were switched off, which meant that the turn signal was already activated at some point.
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Old 01-17-08, 06:08 PM   #12
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If the driver had gotten "as close as is practical to the right curb or edge of the road" before turning right as the Oregon Driver Manual (page 34) says to do, then Ms. Sparling wouldn't have been able to occupy the same space. Or am I missing something?
Yes, there is another law that kicks in and overrides this law when a bike lane is present. That law prohibits the motorist from driving in the bike lane, and only allows crossing it as he turns right across it.
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Old 01-17-08, 06:11 PM   #13
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The specifics of the accident have already been gone over. Please focus your comments on the issue of justice for the cyclist. I'd suggest responding to Elly Blue's rebuttal rather than the Merc article (although the Merc and Elly appear to reach the same conclusions).
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Old 01-17-08, 06:12 PM   #14
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Ok, I am unreasonable, I will accept that and work on it.......

But, relatively/geographically speaking.....are motorists in Portland,
one of the most cycle friendly areas in the western hemisphere really not
conditioned to be aware of cyclists on thier right ? I think not.
Maybe in a place where there are no cyclists, but in Portland ??
I have trouble with that.
The LAB designation of "bike friendly" is a misnomer. It is mostly a reflection of how many facilities there are, and not much at all about how well motorists treat bicyclists. In fact, Portland seems to have the worst stories. For example, this is where the guy got out of the bus to beat up a bicyclist, then the driver let him back in and they drove away.

Anyway, what conditions motorists to not expect traffic on their right when they are in the rightmost lane is the reality of driving for years and thousands of miles with few if any incidents like that, with or without a bike lane present. That's just human nature, and I can understand the D.A. reluctance to prosecute someone for being human.
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Old 01-17-08, 06:15 PM   #15
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Yes, there is another law that kicks in and overrides this law when a bike lane is present. That law prohibits the motorist from driving in the bike lane, and only allows crossing it as he turns right across it.
Ah, ok.

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The specifics of the accident have already been gone over. Please focus your comments on the issue of justice for the cyclist. I'd suggest responding to Elly Blue's rebuttal rather than the Merc article (although the Merc and Elly appear to reach the same conclusions).
What justice? What's supposed to be done?

She put herself in a bad position, and he (with a great driving record, BTW) wasn't aware of her presence.

Is there really anybody at fault here? I don't think so, so I can't say that there's justice to be "served" in any direction.

I'm starting to side with the anti-bike lane argument, actually..
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Old 01-17-08, 06:18 PM   #16
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I'm also wondering when Elly Blue drove anything the size of that cement truck.
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Old 01-17-08, 06:27 PM   #17
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Yes, there is another law that kicks in and overrides this law when a bike lane is present. That law prohibits the motorist from driving in the bike lane, and only allows crossing it as he turns right across it.
In California, a driver is supposed to enter the bike lane before turning right. So it sounds like Oregon's law is at fault.

If no laws were broken, then justice unfortunately wouldn't apply.
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Old 01-17-08, 07:25 PM   #18
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It is really sad what happened. Bike lanes should not be to the right of a turning lane. If they are, cyclists should not use them. Get in the through lane, where you can be seen, and not right hooked.
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Old 01-17-08, 07:27 PM   #19
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Lem - Lt. Kruger has in fact been removed from the traffic squad. As a result of his incompetence in Traffic, he was promoted to Captain of the Drug and Vice squad.
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Old 01-17-08, 07:50 PM   #20
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It is really sad what happened. Bike lanes should not be to the right of a turning lane. If they are, cyclists should not use them. Get in the through lane, where you can be seen, and not right hooked.
Keep in mind that ANY bike lane on a road without right turn ONLY lanes will put a cyclist to the right of a potential turning lane. Until bike lane promoters understand this, you can expect more of the same.
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Old 01-17-08, 07:54 PM   #21
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In California, a driver is supposed to enter the bike lane before turning right. So it sounds like Oregon's law is at fault.

If no laws were broken, then justice unfortunately wouldn't apply.
I don't know that the law governing minutia of right turn behavior with respect to bike lanes matters much in practice - I don't think it affects behavior much. I know what the law requires in CA, but few drivers actually do that, especially (ironically) when bicyclists are present. I doubt these types of crashes are any more likely in OR, and even if they are, I doubt it's because of the difference in the law.

So, I fault the bike lane stripe. Quite a few of us here (edit: including JoeJack who just posted above me!) have concluded that there should be no bike lane stripe within 100' (if not 200') of any place where rights turns are allowed, except maybe if it's to demarcate a bike lane that is to the left of a right only lane.
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Old 01-17-08, 08:11 PM   #22
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There are some unfortunate misunderstandings going on here. There is a difference between a criminal and a civil wrong. Crimes generally require intent, and traffic homicide charges generally require at least criminal recklessness, which is something more than mere negligence. The truck driver clearly was wrong, and Tracey's family's redress is in civil court. But without intent, or at least recklessness (which certainly is more than not seeing a cyclist to the right), I think the prosecutor was right. It's a civil wrong, but not a criminal wrong.

Beyond that, I think the law is correct in this regard. People make mistakes. It's not because they are evil, it's because they are human. Every one of us has made a mistake while driving - almost always nothing happens. Sometimes it does. Running the stop sign or the light because the sun hits us wrong, not seeing the car in the blind spot, any one of a thousand things that can go wrong. I am colorblind, and I have trouble seeing stop signs sometimes that are surrounded by green vegetation. I try hard to see them, but sometimes I don't. I've never caused an accident, but I know at some point I might. If I do, it will be, and should be negligence, but not criminal.
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Old 01-17-08, 08:22 PM   #23
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I'm all about cyclist awareness, we all need to look out for ourselves.

But when you're driving any vehicle, especially one capable of serious bodily harm, like a truck, it's a no-brainer that you should be very aware of your surroundings and drive with extreme caution.

This doesn't have much to do with bike lanes. I'm not sure he knew what he was saying, but Lieutenant Kruger made an interesting point. He thought he was defending the truck driver with his "100 years of conditioning" argument.

But what he really did was to point out that for far too long, cyclists have been overlooked as important road users. Lt. Kruger said the cyclist was careless, but so was the truck driver. For years, drivers have been conditioned not to expect cyclists on the road. So what Lt. Kruger really did was to emphasize that motorists need to be more aware of cyclists than they are.

Sure, cyclists need to look out for themselves. But so do motorists need to look out for cyclists, since a mistake like this can end a lifetime quickly.

...and the last thing cyclists need is to give motorists excuses to be lazy.
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Old 01-17-08, 08:26 PM   #24
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Lem - Lt. Kruger has in fact been removed from the traffic squad. As a result of his incompetence in Traffic, he was promoted to Captain of the Drug and Vice squad.
That's fine, but I don't think he had anything to do with the occurrence of the accident that day. He wasn't driving the truck, nor was he riding the bike.

I would suggest not using an unfortunate accident like this one to campaign against an official, no matter how incompetent he was. There are better things to learn from an accident.
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Old 01-17-08, 08:31 PM   #25
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But when you're driving any vehicle, especially one capable of serious bodily harm, like a truck, it's a no-brainer that you should be very aware of your surroundings and drive extremely carefully.
And he was, having logged an excellent driving record.

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But what he really did was to point out that for far too long, cyclists have been overlooked as important road users.
And she was, literally, "overlooked", since the truck driver was probably twice as far from the ground as she was and hidden behind the engine compartment's large hood.
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