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Ask Our Lawyer - March 2008

And I Thought We Had The Right To Remain Silent–The Cowboy Case

Q: From Joe and Edie Erwin, Ohio ABATE Region 1 Members ask the following question; “My wife & I were pulled over by a local police officer for having a cracked windshield. My wife was driving & I was in the passenger seat. It was 8:30 AM & we were on our way home from working midnight shift. The car is in my wife's name. The officer asked for my wife's license and proof of insurance which she handed to him. Then the officer looks at me and says he wants my ID also. I asked him what I did wrong and he said to just give him my ID which I reluctantly did. He came back to the car & gave my wife a warning for the cracked windshield & didn't say a word to me. Did I have to give the officer my ID even though I wasn't driving & the car wasn't in my name and I committed no crime? All I was doing was sitting quietly in the passenger seat with my seatbelt on.”
A: Your question goes to the heart of our basic rights as Americans. My better angels would want to tell the officer to go pound sand, and I want to give a better answer than that. The answer is most likely, you are required to provide basic identification to an investigating officer. Since you were not driving, you had no obligation to carry a driver’s license, but if you had it in your billfold or access to it in your car, I believe the courts would rule against you if you failed to produce your driver’s license. The U. S. Supreme Court did not serve us well in what I call the “cowboy case.” In that case we had an independent minded citizen from the West who thought he had the right to remain silent when asked by the local cops to give his name. He refused; was charged, and the case went all the way to the U. S. Supreme Court. In today’s world of I.D. paranoia, I believe the Supremes would have ruled against you if you had refused to surrender your driver’s license. At the very least, I bet the cop would have given your wife a ticket–with a fine for the cracked windshield. You know, some cops are like that.
Some states also have “stop and identify statutes,” which require individuals to comply with police requests for identification. In Ohio, such cooperation is required when the officer has a reasonable suspicion that the person is committing, has committed, or is about to commit a criminal offense, or that the person witnessed an act of violence or an act which would create a risk of serious physical harm to another person or to property. In those cases, the person is required to give his or her name, address, and date of birth. The statute in Indiana is much broader, requiring that a person provide either the his or her name, address, and date of birth; or driver's license, if in the person's possession. Illinois requires that if an officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense, he may demand the name and address of the person and an explanation of his actions. In Missouri, officers have the power “to stop any person abroad whenever there is reasonable ground to suspect that he is committing, has committed or is about to commit a crime and demand of him his name, address, business abroad and whither he is going” (although it appears that this provision may only extend to officers in Kansas City – see Mo. Rev. Stat. §84.710(2)).
For some interesting reading, check out the following US Supreme Court cases: INS v. Delgado, 466 U. S. 210, 216 (1984), Terry v. Ohio, 392 U. S. 1 (1968), United States v. Brignoni-Ponce, 422 U. S. 873, 881 (1975).

Seasonal Insurance–A Fraud On Bikers

No biker worth his salt can resist a 70 degree day in January. But insurance companies, including those that say they are our friends, will sell us seasonal insurance on the guise of saving us money and doing us a favor. Usually, they knock off three months worth of coverage, but only knock off one month of premium. By any definition, this is an insurance company rip off.
Every January, I cringe, anticipating a call like I received a couple of years ago. A good A.B.A.T.E. member with a son heading to college took the insurance company bait on seasonal coverage to save some money. You got it, it was a 70 degree day, and all he was going to do is go around the block. The little old lady with blue hair got him at 5 miles a hour–mashed his leg up against the primary cover. He is now missing a leg.
It takes a different kind of insurance company to offer seasonal coverage–and I think it is not our kind of insurance company. Well-meaning state legislators should disallow this type of insurance coverage. In a future article, I will print a list of insurance companies that allow this type of insurance coverage.

The Insurance Company’s Unfair Weapon–No Contact Rule “Jumps Higher”

Here is how the insurance company’s no contact rule works and why it was created. In general terms, the motorcycle insurance coverage you have meets the state legal requirements on the other guy in case you are at fault. You also have coverage when the other guy is at fault, but either does not have insurance or not enough insurance to take care of your losses. In the fine print of your insurance policy is language that says “if you do not make contact with the other vehicle that was at fault, and that unidentified vehicle leaves the scene, you do not have coverage for that loss.” In other words, if you lay your bike down to avoid the accident and injury, and do not make contact with the other vehicle–close but no cigar. In that instance, the insurance companies will not pay. However, if you make contact with the vehicle at fault, your policy provides for payment of your losses.
Here is what the insurance companies have to say for themselves. They worry that if there is no contact with the adverse vehicle, they could be subject to fraudulent claims. For example, if we are riding on gravel and lose it through our own fault, we could contrive a claim for damages and say that a mysterious vehicle driven by an old lady with blue hair caused the accident and left the scene. But that would be fraud, with criminal penalties and the evidence should deter this kind of claim. What about when there are neutral independent witnesses who see the adverse vehicle causing us to lay our bike down and, that adverse vehicle leaves the scene? No fraud here. Further, what if we do not get the license number of that vehicle, but we and others can identify that vehicle only by generic terms? How do you suppose our motorcycle friendly insurance companies apply the rule in that instance? They deny the claim every chance they get.
Let me give you an example as to how extreme this no contact rule has become. Bruce Hainje, a long time A.B.A.T.E. member and his wife were heading south on 231. An old fart insured, who probably can’t hear, see or drive very well, pulls out in front of him. Bruce negotiates a maneuver that would have made Evel Knievel, Jay Jackson, and John Bodecker proud. There are independent witnesses who confirmed the above.
What does the darling of motorcycle insurance companies say? There was no contact, so no liability. That rule does not apply. It was the old guy’s insurance company we are talking about. I call upon the alleged darling of the motorcyclist’s insurers to do the right thing and pay Bruce and his wife for their loss. Bruce did a wonderful job of avoiding serious injury to himself and minimizing the damage to his bike [less than $1,500.00]. Progressive Insurance Company should pay him and not hide behind a provision that I say is a fraud on motorcyclists everywhere.

My Dog’s Ears Stall At 25 MPH.

They say I have Kentucky issues. Understandable, since many of my folks come from Christian County, Kentucky via the Cumberland Gap. Here is my problem. I own every vehicle I have ever bought since 1987, and have one that dates before that. To redeem myself, none are on blocks, and most are not worth more than $500.00. Some maintain that I need to get a lawyer car–whatever the hell that is–like a convertible or something.
The solution–on my way back from the June Jam in Ohio, I saw a sign near Dayton that is a show stopper for any farm boy–AUCTION–and a Government Auction no less. At show center was the perfect lawyer’s car/vehicle–a 5 Ton, 20,000 lb., winch equipped, Kaiser–Jeep, M-813. It is like the type that was used in Viet Nam. That vehicle was powered by the venerable 250 Cummins, and a 6 wheel Rockwell system with 54 inch tires.
My brain was logical, but my left hand was non-sensible – up it went and a bid winner later, I owned the perfect lawyer vehicle. The front windshield folds forward and the top of the cab comes off, so the wind hits you just right. Because it is a military vehicle, you do not need a license plate. My inherited Doberman [with uncut ears] loves it. His ears fly like Yoda’s. Did I mention that the speedometer is broken? No problem. I learned long ago, in another truck, that my dog’s ears stall at 25 mph. So I cannot wait until I get pulled over in the 25 mph zone near my house without a license plate, by our local cop from Hell that asks “how fast was I going, and where is my license plate?” I can’t wait to tell him.

Politicking Dogs–Election Time

I have at least one thing in common with Bill Clinton: my wife is a Democrat. Rights and politics are one of the most important items on the agenda in our house. Election season is loud, and sometimes silent. During a silent time, I taught my dog to do the following. I point my finger at him and ask if he would rather be married to a Democrat or dead–with that he rolls over on his back with legs up in the air. I tried to teach that trick to my other dog, but he would have none of it. I think he is a Democrat. Hurry up November!

REWARD OFFERED

A.B.A.T.E Legal is looking for an individual who went to Kroots Recycling in Columbus, Indiana on November 21, 2007, that sold a bucket of scrap metal for $27.62. If you are this person or have any information regarding this bucket of scrap metal, please contact me at 1-800-25RIDER. A good A.B.A.T.E. member needs your receipt.

 

Ride Safe and Free,

Rod Taylor

A.B.A.T.E. 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. © 2005, A.B.A.T.E. Legal Services

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