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-   -   Cyclist seeks justice, while motorist seeks alibi (http://www.bikeforums.net/advocacy-safety/922852-cyclist-seeks-justice-while-motorist-seeks-alibi.html)

genec 11-19-13 09:18 AM

Cyclist seeks justice, while motorist seeks alibi
 
http://www.10news.com/news/cyclist-o...river-11182013

Quote:

A cyclist hit by a car and left on the road says he will not stop searching until he finds out who was behind the wheel of the car.

"I remember my legs over my head and being flipped in the air," said Robert Demaio.

At about 10 a.m. on Sept. 7, Demaio says he was biking on the right edge of road, going south on Aldine Drive, when witnesses say a car behind him swerved into him.
After treatment in hospital and being released, the cyclist searched for the offending motorist... and found the car in a nearby neighborhood... he called police but was told that without witnesses, there can be no arrest.

Quote:

Parked on driveway was a Subaru with front-end damage and a cracked windshield.

He called San Diego police. An officer came and impounded the car.

"He informed me he found rubber from my front wheel and human skin on the vehicle," said Demaio. "I was told a piece that fell off the bumper also matched the car."

Demaio said the car owner says he was out of town during the accident and the two roommates with access to the keys both denied driving it that morning.

A San Diego police spokesperson told 10News that since no witnesses saw the driver, the investigation is at a standstill.
The owner of the car is denying driving it, and his room mates also deny driving it... the owner files a stolen car report 8 days later. (cute, eh)

Quote:

...filed a stolen vehicle report eight days after the incident, even though the car was back in the driveway the day after.

"He filed the stolen vehicle to avoid responsibility for the accident We are going to take this case to find out who is responsible, so they can be held accountable...
So, uh, the car just went out and hit a cyclist all by itself, eh... then came back and parked itself in the owners driveway... all by itself... and nobody knows what happened... riiiiiiiiight.

agent pombero 11-19-13 09:27 AM

The owner of the car doesn't want to take responsability. The rubber/skin evidence should be good enough to arrest the owner. My bet is that the cyclist will go out and buy an action camera for thr helmet now, to protect himself against cagers like this in the future...

genec 11-19-13 09:30 AM

Quote:

Originally Posted by agent pombero (Post 16259075)
The owner of the car doesn't want to take responsability. The rubber/skin evidence should be good enough to arrest the owner. My bet is that the cyclist will go out and buy an action camera for thr helmet now, to protect himself against cagers like this in the future...

Seems to be the only recourse in this sort of thing... that some advocates deny even happens... although likely any footage from such a cam would not be admissible in court...

agent pombero 11-19-13 09:36 AM

I think the camera as admissible evidence depends on the state. Some cyclists have been able to use their footage to stick it to motorists who caused a problem. Maybe if Go Pro would do some marketing around the idea that a camera is a cyclist "black box", more people would use it as such, and thr demand would be higher to allow video footage as evidence to prosecute dangerous punk motorists.

dynodonn 11-19-13 09:48 AM

Quote:

Originally Posted by genec (Post 16259085)
Seems to be the only recourse in this sort of thing... that some advocates deny even happens... although likely any footage from such a cam would not be admissible in court...



If the motorist's vehicle can be shown to be the cause of the incident, at least the cyclist has a chance at some financial recourse in civil court, maybe not much of a chance, but they still have some. I use fore and aft rear cameras, and if the lighting is right, I've have captured some great mug shots of motorists.

FBinNY 11-19-13 10:01 AM

There are two separate issues here. Civil liability and criminal liability.

Civil law varies among the states, but in New York, good evidence that the car was involved would make the owner and his insurance liable. Reporting a theft 8 days after the fact wouldn't change this, so the victim could recover damages from the car owner, regardless of who was driving.

OTOH, a criminal action for leaving the scene or any other related crime requires putting a particular driver behind the wheel. If the owner has clear proof that he was out of town it leaves him out, and puts the spotlight on his roommates. OTOH, being one of a pool of suspects, even if it's proven that it had to be one of them isn't enough to charge, much less convict. Without evidence putting a specific person behind the wheel at the time, there's no criminal case.

Some people may not like this, and I suggest they move to France where under the Napoleonic code the driver and his roommates could be charged, and the burden of proving they didn't do it would fall on them. As for me, I'm happy with innocent until proven guilty even if it means that some of the worst scum gets away with stuff like this.

dynaryder 11-19-13 04:46 PM

Quote:

Originally Posted by genec (Post 16259085)
although likely any footage from such a cam would not be admissible in court...

IANAL,but I believe video would be kosher because it was taken in public and there's no expectation of privacy in public. It's the audio that can mess things up since state laws vary wildly on this.

CB HI 11-19-13 08:11 PM

Quote:

Originally Posted by dynaryder (Post 16260473)
IANAL,but I believe video would be kosher because it was taken in public and there's no expectation of privacy in public. It's the audio that can mess things up since state laws vary wildly on this.

One by one, the twisting of the wire tap laws are going away by case law as new cases make it to the court.

The hard part with current video, is most times it does not get a real clear view of the driver.

Impound the car until the trial is over, after a few years of not having his car, see if the owner comes up with the drivers name.

Chris516 11-19-13 08:18 PM

Quote:

Originally Posted by agent pombero (Post 16259110)
I think the camera as admissible evidence depends on the state. Some cyclists have been able to use their footage to stick it to motorists who caused a problem. Maybe if Go Pro would do some marketing around the idea that a camera is a cyclist "black box", more people would use it as such, and the demand would be higher to allow video footage as evidence to prosecute dangerous punk motorists.

Yes

B. Carfree 11-19-13 09:55 PM

Quote:

Originally Posted by FBinNY (Post 16259174)
There are two separate issues here. Civil liability and criminal liability.

Civil law varies among the states, but in New York, good evidence that the car was involved would make the owner and his insurance liable. Reporting a theft 8 days after the fact wouldn't change this, so the victim could recover damages from the car owner, regardless of who was driving.

OTOH, a criminal action for leaving the scene or any other related crime requires putting a particular driver behind the wheel. If the owner has clear proof that he was out of town it leaves him out, and puts the spotlight on his roommates. OTOH, being one of a pool of suspects, even if it's proven that it had to be one of them isn't enough to charge, much less convict. Without evidence putting a specific person behind the wheel at the time, there's no criminal case.

Some people may not like this, and I suggest they move to France where under the Napoleonic code the driver and his roommates could be charged, and the burden of proving they didn't do it would fall on them. As for me, I'm happy with innocent until proven guilty even if it means that some of the worst scum gets away with stuff like this.

Rather than go back in time and deal with all that, we can just stay put as we enter into a total surveillance state. Soon enough, there will be enough private and public cameras on the road to always establish who was driving when and where. Add in the tracking of the phones and all financial transactions and it's getting mighty close.

I mildly support this as a remedy for motorists being able to evade responsibility for their actions. It's a steep price, but we have brought it on ourselves by not requiring the cars to keep data on who is driving and where, which could be subject to reasonable searches only under a warrant.

agent pombero 11-20-13 10:06 AM

Bicycles are already the most Free and Liberating forms of transportation, free to glide under the surveillance state of America and Europe. Motorists are getting jealous...

Feldman 11-20-13 10:12 AM

Why the hell don't they start requiring black boxes in every car registered--there's a business opportunity for some auto electricians in setting them up besides. It's really time to stop treating drivers as people in the eyes of the law, to hell with the Constitution in their case!

rydabent 11-20-13 10:31 AM

I like the idea of impounding the car untill someones memory returns.

FBinNY 11-20-13 10:45 AM

Sure, let's just throw out the constitution for drivers. What group do we toss it for next?

Why don't we just jail everybody with a driver's license because we know that most of them will have at least one accident sometime or another?
Why have trials and let uncaring judges impose inadequate sentences? We'll just let cyclist lynch mob make sure justice is served.

We need to stay real and accept that the constitution protects all of us, guilty and innocent, because we can't tell them apart until after a trial.

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

In any case, as pointed out above, it will be progressively harder to evade the law as surveillance and cell phone cameras proliferate. There's no constitutional issue with photos from street view cameras & cell phones being used in evidence as long as government agencies don't illegally take them.

Adding black boxes to new cars along with anti collision technology won't be expensive and makes sense, but requiring retrofitting is unreasonable.

genec 11-20-13 10:47 AM

Quote:

Originally Posted by FBinNY (Post 16262390)
Sure, let's just throw out the constitution for drivers. What group do we toss it for next?

Why don't we just jail everybody with a driver's license because we know that most of them will have at least one accident sometime or another?
Why have trials and let uncaring judges impose inadequate sentences? We'll just let cyclist lynch mob make sure justice is served.

We need to stay real and accept that the constitution protects all of us, guilty and innocent, because we can't tell them apart until after a trial.

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

In any case, as pointed out above, it will be progressively harder to evade the law as surveillance and cell phone cameras proliferate. There's no constitutional issue with photos from street view cameras & cell phones being used in evidence as long as government agencies don't illegally take them.

Adding black boxes to new cars along with anti collision technology won't be expensive and makes sense, but requiring retrofitting is unreasonable.

I think the real answer is to just enforce the laws on the books, and stop calling collisions, "accidents."

kingsqueak 11-20-13 11:28 AM

Quote:

Originally Posted by rydabent (Post 16262352)
I like the idea of impounding the car untill someones memory returns.

Yeah...this.

genec 11-20-13 12:30 PM

Quote:

Originally Posted by rydabent (Post 16262352)
I like the idea of impounding the car untill someones memory returns.

I do too, as apparently the car seems to have done this on it's own... ;)

FBinNY 11-20-13 01:03 PM

Quote:

Originally Posted by rydabent (Post 16262352)
I like the idea of impounding the car untill someones memory returns.

Quote:

Originally Posted by genec (Post 16262776)
I do too, as apparently the car seems to have done this on it's own... ;)

You guys have an interesting sense of justice. From the article, it seems that the car's owner has a clear alibi, having been out of town. So why should he suffer? Would you impound the car if it clearly had been stolen, and found in possession of some kid from the hood?

As it stands (if it were in NY -- don'tknow about CA law) the car owner's insurance company will pay civil damages under strict liability law, so why should the owner be made to also suffer the loss of the car?

Also consider that the only criminal act here isn't the collision but the leaving the scene, which the car didn't do on it's own. If the driver or his authorized agent were driving, had the identical accident and remained on scene, there would not have been a criminal charge, and the insurance would have paid the victim's claim, which is exactly how it's going to play out.

To be clear, I'm not forgiving or ignoring the criminal act of leaving the scene, I'm just not willing to punish the handiest guy around simply because I don't know who else to punish.

Of course we could approach things this way if you prefer

KonAaron Snake 11-20-13 01:33 PM

The thing I don't get is how they live with it. I know people are great rationalizers, but you can't escape looking at yourself in the mirror and I know that would tug at my sense of justice and right/wrong for as long as I lived. For the rest of his life this person knows that he hurt another person, lied, hid and behaved like a coward. I couldn't live with that.

genec 11-20-13 01:54 PM

Quote:

Originally Posted by FBinNY (Post 16262914)
You guys have an interesting sense of justice. From the article, it seems that the car's owner has a clear alibi, having been out of town. So why should he suffer? Would you impound the car if it clearly had been stolen, and found in possession of some kid from the hood?

As it stands (if it were in NY -- don'tknow about CA law) the car owner's insurance company will pay civil damages under strict liability law, so why should the owner be made to also suffer the loss of the car?

Also consider that the only criminal act here isn't the collision but the leaving the scene, which the car didn't do on it's own. If the driver or his authorized agent were driving, had the identical accident and remained on scene, there would not have been a criminal charge, and the insurance would have paid the victim's claim, which is exactly how it's going to play out.

To be clear, I'm not forgiving or ignoring the criminal act of leaving the scene, I'm just not willing to punish the handiest guy around simply because I don't know who else to punish.

Of course we could approach things this way if you prefer

To the best of my knowledge the car owner has not proven he has a valid alibi, and he did report the car stolen... EIGHT DAYS later. Not before the incident... and evidence was found on the car that connected the car to the victim and scene... the owner says he didn't do it, and his roommates say they didn't do it...

So once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth. Apparently the car drove itself to the scene and committed the incident. It must be impounded... if for no other reason to prevent the car from committing similar incidents in the future.

(the fact is, someone lied... that is the real truth) Or do you suspect that a car thief returned the car back to the point of origin? Which fallacy do you believe?

BTW the car owner...
Quote:

the car owner says he was out of town during the accident
Fine, show a receipt or some other evidence that you were out of town... even cell phone records... personal testimony of your own whereabouts is pretty sketchy.

KonAaron Snake 11-20-13 01:57 PM

Quote:

Originally Posted by genec (Post 16263128)
To the best of my knowledge the car owner has not proven he has a valid alibi, and he did report the car stolen... EIGHT DAYS later. Not before the incident... and evidence was found on the car that connected the car to the victim and scene... the owner says he didn't do it, and his roommates say they didn't do it...

So once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth. Apparently the car drove itself to the scene and committed the incident. It must be impounded... if for no other reason to prevent the car from committing similar incidents in the future.

(the fact is, someone lied... that is the real truth) Or do you suspect that a car thief returned the car back to the point of origin? Which fallacy do you believe?

He believes that by the standards for a criminal case, there is unlikely to be enough evidence to get a conviction. What part of this aren't you getting?

Further - he's suggesting that we don't re-write the laws governing due process because sometimes our laws are inconvenient and bad guys get away.

genec 11-20-13 02:01 PM

Quote:

Originally Posted by KonAaron Snake (Post 16263137)
He believes that by the standards for a criminal case, there is unlikely to be enough evidence to get a conviction. What part of this aren't you getting?

Further - he's suggesting that we don't re-write the laws governing due process because sometimes our laws are inconvenient and bad guys get away.

I think the reality is that the police department are not giving this full due process... "because it was just a cyclist..."

Had some important person been involved... perhaps the police would insist on evidence beyond: "the car owner says he was out of town during the accident..."

I am merely suggesting something as improbable as the alibi the car owner has given.

FBinNY 11-20-13 02:07 PM

Quote:

Originally Posted by genec (Post 16263128)

So once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth. Apparently the car drove itself to the scene and committed the incident. It must be impounded... if for no other reason to prevent the car from committing similar incidents in the future.

You're right that (as far as the article says) that the driver didn't PROVE he was out of town, but under US and state law that's not his burden, but the State's to disprove. I trust that the police did investigate his alibi, though I'm not privy to the details.

IMO, that leaves one (or both) of the roommates as the likely drivers, but again, that isn't enough and would have to be proven beyond a reasonable doubt.

Here in the USA we don't operate criminal law by process of elimination, and nobody must prove his innocence. Rather the state has the burden of proof. We also don't prosecute inanimate objects under criminal law because they lack the mens rea, and are incapable of confronting their accusers, and mounting a defense.

I agree that our system isn't perfect, and allows some fairly obvious guilty "if not him, then who" people to dodge the law, but I wouldn't have it any other way. In fact if we look at the number of convicts later PROVEN not guilty (not technicality cases) we might draw the conclusion that it's already too easy to convict, and protections should be increased, not lessened.

KonAaron Snake 11-20-13 02:07 PM

I think the reality is that you're a zealot looking to be persecuted and throwing out inflammatory accusations with no basis in anything but preconceived bias and anger. I have no idea how things work where this happened, but in Philly no one gets decent service from the local police unless the case is high profile and/or it happened to an officer's relative. You don't have to be a cyclist to get crappy service, almost everyone does. A traffic incident where no one was killed? No - no one is getting service, unless it's a young child. I'm not trying to minimize the victim's suffering, and I'd be furious and on the phone with detectives every freaking day...but he was up and mobile the next day - so, to police, it's probably not high priority. Not everyone knows how to pressure and advocate with the police either...it's a useful skill.

If I'm the guy who got hit, I'm going to local bars with photos of the three and asking if any of them were in 20 minutes before the accident. I'd also post a $1,000 reward for information leading to the conviction of the guilty party.

genec 11-20-13 02:18 PM

Quote:

Originally Posted by FBinNY (Post 16263166)
You're right that (as far as the article says) that the driver didn't PROVE he was out of town, but under US and state law that's not his burden, but the State's to disprove. I trust that the police did investigate his alibi, though I'm not privy to the details.

IMO, that leaves one (or both) of the roommates as the likely drivers, but again, that isn't enough and would have to be proven beyond a reasonable doubt.

Here in the USA we don't operate criminal law by process of elimination, and nobody must prove his innocence. Rather the state has the burden of proof. We also don't prosecute inanimate objects under criminal law because they lack the mens rea, and are incapable of confronting their accusers, and mounting a defense.

I agree that our system isn't perfect, and allows some fairly obvious guilty "if not him, then who" people to dodge the law, but I wouldn't have it any other way. In fact if we look at the number of convicts later PROVEN not guilty (not technicality cases) we might draw the conclusion that it's already too easy to convict, and protections should be increased, not lessened.

In reality I think the police are out of the picture and the victim will have to resort to a civil case to recover medical payments... and will likely have to hire a detective to get to the bottom of the real story. (receipts, cell phone records, local video cameras, etc)

I was just putting out some "Solomon justice" to counter the seemingly poor excuses put up by the likely offender. It just seems down right silly that the car was found, at home, with evidence, and supposedly no one drove it... case closed.

I also have to wonder how far the police might have gone had the victim been found dead.


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