Christopher Heaps is an avid cyclist, commuting from his home in Sellwood to his downtown office each day, where he practices environmental law. He ticks off the benefits of biking, like "helping to lower the single highest cause" of global warming by not creating carbon emissions, doing his part to delay peak oil, and staying healthy.
But in practice, the city is "effectively discouraging" cycling, says Heaps. When police—working with the district attorney's office—don't cite drivers who apparently break the law and injure or kill cyclists, as has happened in three recent high-profile collisions, it tells cyclists that there are "no repercussions" for unsafe driving. And when "over 60 percent of Portlanders want to get on a bike, but don't because of concerns of safety," Heaps says, a policy of not citing unsafe driving is counterproductive.
The cops' policy is this: Only collisions that cause "traumatic" injuries are automatically investigated. Officers have discretion, however, to investigate any collision. (Siobhan Doyle, riding in the N Interstate bike lane on November 6, was hit by a car turning right at Greeley, and went to the hospital in an ambulance. But the police officer did not investigate or cite the driver, Lisa Wheeler, for failing to yield to Doyle.)
The Multnomah County district attorney's office adds another layer of policy—the DA doesn't want cops to cite drivers in fatal or serious injury collisions (like the ones that took the lives of Brett Jarolimek and Tracey Sparling), "unless and until we've finished our investigations," says Multnomah County Deputy District Attorney Chuck Sparks. "I've told the police, do not issue citations, please. It could cause us problems down the road." Sparks is concerned that a felony case might be at risk if the driver argues that the citation/charge combo constitutes double jeopardy.
Heaps, however, thinks that policy is flawed. He points to a February Oregon Supreme Court opinion, State v. Warner, where a driver was cited in 1999 by the police for careless driving and driving under the influence, and the DA later filed DUI and reckless driving charges. The driver tried to get the DA's charges dismissed, citing double jeopardy and arguing that he shouldn't be prosecuted for both careless driving (a traffic violation) and reckless driving (a traffic crime).
The court's opinion? After considering the penalties for careless driving, the citation isn't the same as a reckless driving criminal charge. "Accordingly, that defendant could be prosecuted separately for careless driving and reckless driving."
"In my view, [the Supreme Court opinion] should put to rest any legal argument that it would constitute double jeopardy to bring a criminal reckless driving (or other, including manslaughter) charge against someone who was issued a traffic citation for the same incident," Heaps says.
But Sparks says the ruling isn't as simple as it sounds. For starters, it doesn't address federal law regarding double jeopardy, just Oregon law. And the case focuses on a careless driving citation—a traffic offense that recently changed, thanks to a new "vulnerable users" law that increases the penalties for careless driving when a cyclist or pedestrian is injured. Under that new law, a careless driving citation might be more akin to a criminal charge. And Warner didn't consider other kinds of citations to see how they stack up to charges including other citations with minor fines, like failure to yield.
"I think it's very important as attorneys for us to be careful, and—to put it bluntly—not screw up the case," Sparks says. "We need to hold off on those citations because we don't know exactly how the court's going to come down." It's his job to "protect the viability of our case against all possible attacks," even if that means asking the police to hold off on any citations—even seemingly minor ones— until he's finished reviewing the case. "The best way to communicate with a large and varied organization like the police bureau is to give a bright line."
Given that policy, Heaps and a few other cyclists plan to use another Oregon law to cite the drivers themselves.
Called a "citizen-initiated citation," anyone who has the name and address of a driver can file a citation alleging a traffic infraction. The driver can either pay the fine, or contest the citation.
Heaps and Joe Kurmaskie—who emceed the recent "We Are All Traffic" rally on the waterfront—have already laid the groundwork to cite Wheeler, the woman who hit Doyle. And if the DA declines to file charges in either the Sparling or Jarolimek case—both are still under investigation—the duo plan to do citizen-initiated citations again.
"We're going to make sure that everyone who hurts someone as a result of breaking a traffic law gets cited, until the police start doing their job," Heaps says.