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Ask Our Lawyer - September 2011


Q: I live in Indiana. They just put down chip and seal pavement on the road near my house. It is a slippery mess and very dangerous to ride a motorcycle on. I called the Supervisor at INDOT to complain about there being no warning signs. This surface is hard on paint from the rocks being thrown. It is like trying to ride on marbles with a bike and I almost lost control of my truck going around a curve. Is there anything that ABATE can do about this junk being put down on state roads?

- Steven Kuhn, ABATE of Indiana

A. Steven, our office has been in contact with the officials having jurisdiction over this state road. Chip and seal is not a friend of any vehicle, much less a two wheeler. If chip and seal is used, warning signs are a must for the traveling public. We have had some bad mishaps with chip and seal in both Ohio and Illinois. We have requested a formal response from Indiana, Illinois and Ohio regarding the procedures to be used by highway contractors when chip and seal is applied. I have requested ABATE lawyer George Tinkham, formerly a lawyer for the Illinois Department of Transportation, to weigh in on this one as well.


Q: The company I work for has a ban on weapons (guns or knives more than a 3" blade) on their property which I'm sure most companies do. They told us today that if they suspect that we have a weapon in our vehicle, that they can search it without a warrant. They can't do this or can they? Thanks.

- ABATE member

A: I am assuming your vehicle is parked on company property. If that is the case, the company's property rights trump your 4th Amendment rights. The point is that all property owners can set the conditions for entry. If your car is parked in a public area not controlled by the company, a warrant is needed, unless the company makes a search of your vehicle a condition of employment. But how far can the company go with rules? Could they search your home to see if you have automatic weapons if company rules allow? I will continue this answer in a later column.

ABATE lawyer George Tinkham adds: I agree that an employer may make inspection of private property at the workplace a condition of employment. The employee, however, has the option of leaving instead of allowing the inspection. This, of course, may result in discipline - including loss of job.


We’ve gotten a number of questions recently about handlebar heights. Here are a couple of them and our response:

Q. There seems to be much confusion about handlebar height and how it is measured. Perhaps your column could be of assistance.

- Ed Blaize, ABATE of OHIO

Q. There was an incident with one of our members concerning "Handle Bar Height". He was stopped by the Ill. State Police for his bars being too high. He received a warning ticket and was told that the next time he could receive a ticket and possibly have his bike towed/impounded. That just doesn’t seem right.

- ABATE of Illinios member

A: Until the various state organizations can get their laws changed, these laws remain in force. The laws are not consistent from state to state, either. In Ohio, the maximum height is 15 inches. In Indiana and Illinois, the maximum height is the rider’s shoulder when the rider is seated in the saddle. If you are cited for a handlebar height violation, carefully watch how the officer measures the heights. You can challenge the ticket if the officer does not properly measure the heights, or, as happens in some cases, doesn’t measure at all.


Q: My name is Robert Henry from Crawford County ABATE in Illinois. Recently, the Sons of Silence had a national support rally in Palestine, IL. The attendees of the rally have always been well behaved at this rally. Here’s the thing that has got me going: the county sheriff has been videoing every biker that comes and goes to and from the party, as well as all bikers with or without colors on. The party is on private property. The video device is set up on a tripod at the park entrance. Is this legal for the police to do? It sure gives the feeling of Big Brother. In addition, the State Police as well as county and village police are patrolling heavily. Please advise with your thoughts on this matter.

- Robert Henry, ABATE of Illinois

A: As long as the video is done from public property, police officers most likely have the right to tape. This activity creates a chilling effect. So at some point the activity may violate our 4th Amendment rights. Remember, int many states, its a one-way street - the police can film you, but you can’t film the police.


ABATE of Michigan sent us a request we wanted to pass along to you:

ABATE of Michigan would like the help of all motorcyclists in their fight for freedom. Senate Bill 291 passed the Michigan Senate in late June. We are asking all rights activists to send a post card to Michigan's Governor, Rick Snyder, urging him to support motorcycle helmet choice for adults. A postcard from a "FREE" state may help him realize that Michigan loses motorcycle money every day of the summer with a mandatory helmet law. Governor Snyder prides himself on being all about business and helping business. Please urge Governor Snyder to support adult choice. Mail to: Governor Rick Snyder, State Capitol, P.O. Box 30013, Lansing,Michigan 48909
- Vince Consiglio, President, ABATE of Michigan

We will also ask the governors of the "free states" to contact Governor Snyder and urge support of the bill. I am looking forward to riding in a free Michigan. - Rod


This question and answer comes courtesy of Jay Jackson, Executive Director of ABATE of Indiana:

Q: Do you know what Indiana's stance is on the left on red is when the traffic sensor doesn’t work? I was on my bike the other day and the sensor didn’t detect me. After waiting through at least two cycles, I turned left on the red and got stopped by a cop. Is there a law that lets bikes turn left on red when the sensor doesn’t work? Or have I just heard it is generally acceptable?

- ABATE of Indiana member

A: There is no provision in Indiana Code that allows a motorcycle to turn left on red, so technically, if a rider does that they are violating the law and can be cited. Practically speaking, many of our friends in law enforcement say that the cop would have to be a real hard case to write somebody up if they follow the "generally accepted" procedure of waiting through one complete cycle (meaning you were there for two cycles) and then proceeding with caution. We have not lobbied for this as we are reluctant to ask for "special privileges" for motorcycles. However, we do want to be treated equally and expect to be recognized by traffic control devices. We have done extremely well in contacting local jurisdictions when a sensor does not function for motorcycles and meeting with them to re-adjust. I hope this helps.

Thanks, Jay!

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

Call us at (800) 25-RIDER  

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at rodtaylor@abatelegal.com. © 2011, A.B.A.T.E. Legal Services