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Ask Our Lawyer - December 2003

Q: My best friend was killed last week. He was riding his bike on the road, minding his own business, when he was struck and killed by a 16 year old in a car who missed the stopsign because she was talking on her cell phone. The prosecutor says he probably won't do anything because it was just an accident. I'm mad as hell! What can I do about it?

A: You raise a good question, but it doesn't yet have a good answer. To recast the question, how much of the burden of other people's action should us bikers have to bear? Maybe it is time for the cagers to give up their cell phones, big macs, french fries, diet Pepsi, etc., etc., etc., etc.
This summer and late fall found us with numbers of horrific accidents where our members were killed or were the recipients of life-altering injuries. I question whether those are truly accidents. Perhaps it is truly an accident when you look and fail to see a stop sign, etc. But, is it an accident when you're running down the road, over the speed limit, talking on the cell phone, eating a big mac, between sips of a diet Pepsi? I don't think so. Do we want to deter this conduct? Absolutely!
The stock response you get from most lawyers is that a simple negligence resulting in a fatality is not an act that can be punished by imprisonment. Those same lawyers will also say that it's the Prosecutor's discretion as to whether or not to file charges in these types of cases. Our phones have been ringing off the hook with the understandably upset, heartbroken parents, wives, husbands, and children of those who have not faired well in collisions caused by those talking on cell phones, etc. Do we need additional laws to enforce a reasonable standard of care? Hopefully not. What we do need is for us to take the lead in putting pressure on prosecutors to enforce the existing laws that will deter the reckless endangerment of other motorists. It's time for motorcyclists to stand up and declare that we will no longer pay the price for others reckless behavior.
At the recent ABATE of Indiana's Officers and Directors Training Seminar, I took a survey of the participants. The survey asked for the opinions as to when a driver should serve time when that driver causes death or serious injury. I, for one, was stunned at the results of that survey. We will also be conducting the survey at the upcoming state meetings for ABATE of Illinois and ABATE of Ohio. At the conclusion of those meetings, we will be publishing a comprehensive evaluation of those surveys and will print the results in this article. Stay tuned to see what we found out. I believe we will have something to say to the prosecutors.


The National Highway Traffic Safety Administration ("NHTSA") has released yet another "study" on motorcycle helmet laws. This time, NHTSA commissioned Preusser Research of Connecticut to try to build a case that motorcyclists in Kentucky and Louisiana [they repealed mandatory helmet laws in 1998 and 1999, respectively] are worse off by opting for adult choice in helmet use. If you want to engage in some unbelievable "crash description," check out this so-called study and you will understand why motorcycle rights organizations exist.
NHTSA is once again trying to act like the biker's friend, while preparing to restrict us behind their backs. It reminds me of the Wayne County Three-Kick Rule:

A NHTSA bureaucrat went duck hunting in southern Illinois. He shot and dropped a bird, but it fell into the yard of an old biker. As the bureaucrat climbed over the fence, the biker drove up on his scooter and asked him what he was doing. The bureaucrat responded, "I shot a duck and it fell in this yard, and now I'm going to retrieve it." The biker replied. "This is my property, and you are not coming over here." The indignant bureaucrat said, "I write the rules about motorcycling in the U.S., and if you don't let me get that duck, I'll make sure you never ride again." The biker smiled and said, "Apparently, you don't know how we do things here. We settle small disagreements like this with the Three-Kick Rule." The bureaucrat asked, "What is the Three-Kick Rule?" The bureaucrat replied. "Well, first I kick you three times and then you kick me three times, and so on, back and forth, until someone gives up."
The bureaucrat quickly thought about the proposed contest and decided that he could easily take the old biker. He agreed to abide by local custom. The old biker slowly climbed down from the bike and walked up to the bureaucrat.
His first kick planted the toe of his boot into the bureaucrat's groin and dropped him to his knees. His second kick nearly wiped the man's nose off his face. The bureaucrat was flat on his belly when the biker's third kick to a kidney nearly caused him to give up.
The bureaucrat using every bit of his will, managed to get to his feet and said, "Okay, you old coot, now it's my turn."
The old biker grinned and said, "Naw, I give up; you can have the duck."

And we say to NHTSA, you can have your latest concocted study. It often seems that NHTSA is so concerned about whether I wear a helmet or not that they miss the bigger picture. Once again, it's up to us to help them refocus on what's really important, like cell phones, Big Macs, hair curlers, and reading while driving.

Ride safe and free,
Rod Taylor
ABATE Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: ASK OUR LAWYER, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com.