bgross

Many of you may remember Jim Swarzman's death by hit-and-run back on 10 April.

https://sdbikecommuter.com/forums/com...scussionID=539

Today, after a two day trial in Vista, the driver was found guilty of felony hit and run.

Sentencing will be on 12 September at 1330.

Please consider marking your calendar and attending the proceeding. I know that it would mean a great deal to his parents, his fiancee, and other family members. Beyond that kindness, we, the bicycling community, need to be a visible presence.

urbanknight

It's wonderful to see the vulnerability of riders being recognized. Jim was the only rider I knew personally to get killed, and it really hit home, especially with all the words of encouragement he had been sending me on facebook during the weeks leading up until his death.

GP

According to someone that went to the trial (He refers to the judge), "He also found that Jim Swarzman contributed to his death by not heeding the statute that cyclists must ride to the right hand side of q lqne."

alicestrong

I hope that justice is served...

https://www.bikeforums.net/showthread...light=swarzman

bgross

The chief investigator (prosecution witness), who analyzed the accident scene did, indeed, state that Jim's position, in the middle of the #2 lane, riding to the left of another rider, was a violation of the statute.

However, when the defense counsel attempted to ask a wildly hypothetical question (along the lines of, "wouldn't you agree that, IF the victim had been riding in the bike lane [there is NO bike lane at this location] or further to the right as the CVC requires -- that this accident never would have happened?), the judge sustained the objection of the prosecutor. He tried a different wording and the judge basically told him it wasn't going to work.*



Yes, the judge did mention the position of the rider as a contributing factor, but stated that whether Jim was 10% at fault or 90% at fault or 0% at fault -- it did not matter in this case. The defendant was charged with violation of CVC section 20001 & 20003-- hit and run.

The four elements of that section (simplified version) are: 1) had a collision, 2) resulting in injury or death 3) he knew that he had a collision and 4) failed to do any/all if the required actions listed in the CVC section.

The statute doesn't deal with who is at fault or an apportionment of blame -- only those four elements.

The defendant's entire defense (since the evidence demonstrated that 1 & 2 were met) hinged upon his claim that his failure to perform #4 was a result of his claim that he didn't know that he'd hit Jim -- claiming that he "didn't remember" anything from the time he dropped off his friend at a motel until he arrived at home and hit the mailbox as he pulled into the driveway.

Also not at issue, since the defendant came forward nearly a day later, was whether he was DUI. Although he admitted consuming 2-3 beers in the hours before the incident, he wasn't under the influence when deputies interviewed him.
Naturally, as we try to imagine why a driver might leave the scene, it's easy to conclude that he may have been concerned about DUI. Such a theory might be consistent with the evidence or inferred, but it wasn't an element of the hit and run charge.

Please try to make it to the sentencing on 12 Sept. at 1300.

*During the lunch break on Tuesday, I went with Jim's mother and a couple family members to the scene of Jim's death.
There is still plenty of white spray paint from the investigator's marking of debris, bicycle and the point where Jim's landed.
As the Fates would have it, a Dodge Ram 1500 pickup (similar to the defendant's truck) drove past the scene while I was taking photographs.
As most of you who ride that section of the highway already know, even if the riders had been riding within inches of the 'fog line', it's entirely possible that a vehicle could strike them if the vehicle wasn't hugging the lane line or straddling it.

In the case of this incident, using the investigator's marks at the point of impact, the testimony of a motorcyclist who was traveling behind the defendant's truck indicated that the truck moved over to straddle the line between the two lanes -- and still hit Jim. If the truck had simply changed lanes instead of just wandering over... well, that's hypothetical.

GP

Thanks for the clarification.

Ray R

It is disturbing how many judges and law enforcement officers fail to properly understand CVC 21202:

21202. (a) Any person operating a bicycle upon a roadway at a speed less than the normal speed of traffic moving in the same direction at that time shall ride as close as practicable to the right-hand curb or edge of the roadway except under any of the following situations:
(1) When overtaking and passing another bicycle or vehicle proceeding in the same direction.

(2) When preparing for a left turn at an intersection or into a private road or driveway.

(3) When reasonably necessary to avoid conditions (including, but not limited to, fixed or moving objects, vehicles, bicycles, pedestrians, animals, surface hazards, or substandard width lanes) that make it unsafe to continue along the right-hand curb or edge, subject to the provisions of Section 21656. For purposes of this section, a "substandard width lane" is a lane that is too narrow for a bicycle and a vehicle to travel safely side by side within the lane.

(4) When approaching a place where a right turn is authorized.

The place where Jim was killed has no shoulder and the pavement directly to the left of the fog line is unridable due to potholes and broken pavement. CVC21202(3) speaks to this condition as an exemption to the "must ride as far right as practicable" clause. Jim was properly and legally taking the lane here. The judge was blaming the victim.

Chaco

As I remember, this happened in Leucadia. I'm very familiar with that stretch of road. It's one of the worst in all of North County. Not only is there no bike land, but the road itself has hundreds of potholes, and the right side of the road has so many goatheads that this section is known as "Goathead Alley". I've had no less than 5 flats there. The road is so bad that if you're passing another rider, you're more than likely to be in the middle of the right lane, because the rider you're passing is already trying to avoid the hazards that exist there.

On top of that, Encinitas is spending thousands of dollars trying to keep hidden a report that outlines how bad many of the roads in the city are. Our city council, unfortunately, is not much better than a dysfunctional HOA -- run by people whose egos seem to be inversely related to their skills.

Elvo

What's a goat head?

GP

thorn.

nvrlnd7

When i ride thru leucadia going south, i go up to neptune,down to swamis.North pretend it's paris roubaix.

JustMe

No disagreement with how disturbing the lack of comprehension is, but I would attribute the failure to the prosecuting attorney who had the responsibility of framing the issues and informing the judge of the applicable law, and to expand on the limited knowledge of the investigating officer. Judges rely on the attorneys to elucidate the issues and applicable law because there are just simply too many laws on the books for a judge to know all of the nuances that might apply. Law enforcement is unfortunately in that "a little knowledge is dangerous" category.

Ray R

"Goatheads" are the seedpod of Tribulus terrestris, an annual vine that has ingeniously adapted bicycle tires as a vector for distributing its seeds. Like a caltrop they always land with one spike pointing straight up.

alicestrong

goathead_thorn.jpg

vertical bob

elucidate?

JustMe

Kinda the opposite of hallucinate. I'm gonna get U a dictionary for your birthday.

vertical bob

Oh I get it. That means splain, right?

JustMe

Si; eeeess close enuf.

robertkat

Yesterday we had a 200 km brevet that we renamed as a memorial ride for Jim. All of us put in a good effort in his honor, and a friend of mine made this little video in memory.

bgross

Thanks for posting this. It's beautiful.

calamarichris

Yeah, thanks Bobkat. Lauretta and I just rode past that spot yesterday, but we missed the photo & helmet. I was too busy staying FRAP to avoid the cars, and looking for the accident investigator's spraypaint on the road amid the heavy spray painting all along that stretch--is this an indicator that they're finally going to do something about that miserable mile?

GP

The white lines are USA boundaries.

robertkat

I think so, or should I say, I hope so. I saw all of that too and was wondering about it. There's been a few plans in the works for the past couple years to do something with that stretch of road. Believe it or not, the city is like "Hey this is crap and maybe we can make it nice and pretty". I know that one of the drafts I saw is to improve, possibly widen and fancy up, the sidewalks and parking on the west side, while removing one lane and adding nice bike lanes on both sides. I think it would be two lanes south bound and one lane north bound, but I could be wrong.

robertkat

Micro-gerrymandering?

Rumpled

I think GP means the underground utility markings. Used before you dig anywhere.