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.