By Maureen Massidda, Content & Connections Director
Judge’s Hands Tied at Sentencing Due to Plea Deal
“It’s really shameful that laws were not appropriately applied and sentencing guidelines watered down in this instance.” R. Hill
“People get punished more for hitting other cars than they do for hitting people. Disgusting.” Mc Crowell
“She caused a permanent head injury to a cyclist, and she gets community service? Not enough.” M. Willimas
“As a cyclist who's also been hit, this is frustrating and pisses me off that the purpose of the new law was ignored. Can’t she at least be made to repaint bike lanes or forced to log those hours riding a bike in traffic to hopefully increase her awareness and that hitting a cyclist is a big deal?” D. Miller
“There’s no lesson in that sentence. What I don’t understand is if there is a new law on the books why was the old law used?” P. McCarthy
Outrage, disappointment, and disbelief. Those are just some of the sentiments cyclists are expressing via social media channels after the Jeffco DA’s Office decided not to charge a driver with Colorado’s new VRU law, aka, careless driving resulting in serious bodily injury (SBI) to a cyclist, which by definition is a vulnerable road user (VRU). Instead, the DA’s Office offered the 19-year old driver a plea deal charging her with careless driving resulting in injury, a mere 4-point violation.
The driver walked out of court without losing her driver’s license. She is headed off to vet tech school in Las Vegas, NV where she will be able to keep driving her car around cyclists and other vulnerable road users. She will not have to take public transportation, ride a bike, or walk to get around. Her life will not be impacted like that of the cyclist she hit.
However, every aspect of the cyclist’s life has been disrupted following the crash: work, sleep, health, training, and social activities. The cyclist, our very own Megan Hottman, sustained serious bodily injuries to her left knee and a concussion. Her injuries required two MRIs, numerous appointments with specialists, and months of physical and vestibular therapy. She missed time from work and training due to her injuries and could not race the Transrockies Run for which she had been training since January. Doctors diagnosed her with post-concussive symptoms after headaches and nausea forced her to leave work repeatedly. Megan, who had perfect vision before the crash, now wears glasses due to visual disturbances from this collision. Her relationships suffered due to her erratic moods (typical in a brain injury) and inability to process information and emotions. The impact of these injuries is lifelong and will be part of Megan’s life going forward.
If you have met Megan, you know that the bike is more than an avenue of recreation for her; it is her primary form of transportation. She rides her bike to work, the bank, doctors’ appointments, yoga, and the store. Her car sits in the garage for weeks at a time. She has ridden thousands of miles across the country, including the Midwest, Nebraska, Kansas, Missouri, rural North Carolina, downtown Manhattan in the heart of New York, and all over Colorado, including downtown Denver. Alone last year in 2018, she rode 10,000 miles on her bike.
On the day of the crash, May 29, 2019, Megan was commuting from work to her home on her e-bike, with a stop at the bank around 3:00 pm. Less than a mile from her house, on a road she uses daily, she was doing everything right: riding in the bike lane, wearing a white helmet, in broad daylight, not wearing headphones, looking over her shoulder for traffic, obeying traffic rules, etc.
From behind, Megan became aware of a red Subaru approaching and glanced to her left to see the car’s turn signal on as the vehicle drew even right next to her. Megan saw the driver looking ahead, not to her right, so Megan hit her brakes aware that the driver was about to make a right-hand turn directly in her path. The driver was 100 percent unaware that Megan was in the bike lane to her right.
Megan was upset but relieved that she had been able to avoid a crash. She was then surprised by a second car immediately on the bumper of the first car. While Megan managed to avoid the first car, she was unable to take any evasive action when the driver of the second car turned right into Megan’s bike. This driver did not have her turn signal on. Megan had no chance to avoid her, and her left arm hit the right side mirror, breaking it off of the car. The bike went right, and Megan fell to her left “highside,” landing on the ground on her left hip and thigh.
Immediately, Megan felt the impact on her left femur bone. Her left forearm hurt from the mirror impact, and both knees also hurt, likely as a result of both hitting the top tube of the bike. Megan remained on the ground perfectly still. The driver got out of her car, and Megan yelled at her to call the police. She could hear her fumbling for her phone and was saying “I’m so sorry, I’m so sorry.” Megan yelled back that she had to check bike lanes for cyclists before turning right.
She could hear people stopping and getting out of their cars coming over to check on her. One of the first people on the scene was an off-duty EMT. He came over and asked Megan what hurt, did a check of her left hip, and then pushed on the area that hurt.
In the moments after the crash, something occurred to her that she never thought about in all these years of representing injured cyclists: “I felt ashamed, embarrassed, alone, and vulnerable there on the ground. I cried. I was aware of five or ten people standing over me. I could see cars pulling over and stopping and heard sirens approaching. I was aware of the “Scene” taking shape around me. I wanted to disappear. It felt so awful,” says Megan.
One thing that surprised Megan was how many spectators wanted to move her bike and belongings from the point of impact (POI). Knowing they were trying to help, she politely declined. Again, and again, and again. She wanted the scene preserved and rightfully so- Arvada PD later brought out their drone to conduct overhead and scene investigation and measurements. Had either the bike, or the car, been moved prior to that, there would have been no way for them to do their diligence in this regard. (So- note to bystanders, don’t move things at the scene, please, unless instructed to do so by the authorities on scene).
A fire truck arrived and blocked off the road. Several Arvada PD cars came, followed by an ambulance. Paramedics put her on a stretcher and loaded her into the back of the ambulance. They took her vitals and checked her leg to see if there was any bruising or a bone sticking out.
As soon as Megan could get her phone, she texted her ortho doctor and set up an appointment for the following morning. Knowing that she had made an appointment, paramedics released Megan from the ambulance.
Ironically, on that that very day, just a few hours earlier, Governor Polis had signed Senate Bill 19-175 into law which increases the penalties for careless driving resulting in SBI to a VRU. According to C.R.S. 42-2-1601 (4)(b), SBI is defined as “injury that involves, either at the time of the actual injury or at a later time, a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.”
When local bike advocates and lawmakers proposed this law and got it signed into law, the intent was to revoke the privilege of driving from someone who hits and harms a cyclist, so that they may be forced to ride a bike, or walk, or use public transit to get around for a period of time. “Until drivers lose their privilege of driving, and have to ride bikes or walk to get around, the driving behavior towards cyclists doesn’t change,” says Megan. Of course the law is also intended to punish the driver, and to cause some mild inconvenience in their life, a mild fraction of the inconvenience and pain the collision caused to the injured cyclist.
The DA has a low burden of proof (BOP) to utilize the VRU law: They need only prove (1) careless driving (same as they would normally do for a four-point careless charge) (2) plus SBI (doctor signs a form saying injuries were serious bodily injuries, a term of art as defined by statute) (3) plus VRU (cyclists are defined as VRUs so this is met automatically).
The facts in this case are clear in our opinion:
Arvada police cited the driver with careless driving causing injury.
Megan’s doctor provided a signed SBI statement confirming that her injuries rose to the level of serious bodily injury. He checked TWO boxes, noting fracture and impairment of the use of the knee.
Cyclists are defined as VRUs, so Megan was a VRU.
Yet, the DA’s Office decided not to charge the driver with the new law or take this case to trial. We take serious issue with that. Megan asked the DA’s Office to elevate the charge against the driver using C.R.S. 42-4-1402.5, the VRU law, which if convicted, would mean the driver loses 12 points on their license, and the Department of Motor Vehicles would revoke their license for a period of time. Instead, the DA’s Office offered the driver the four-point careless charge causing injury as a plea bargain.
Wondering why? This decision was made because DA Office staff members disputed Megan’s SBI despite the SBI form signed by her orthopedic doctor. He would never put his professional credibility on the line if he did not read the statutory definition of SBI and agree with it. The staff was adamant that if the case went to trial on the VRU charge, they would “not prevail” on the element of SBI with the jury due to some remarks in Megan’s medical records that reference “normal knee.” This overlooked the other pages and comments about the diagnosed tear in Megan’s knee, as well as the MRI findings which also diagnosed the tear in her knee.
Due to the lesser charge of careless driving with injury, County Court Judge Harold Sargent was limited in his sentencing options. He did not have the authority or ability to take the driver’s license away. He could only choose between fines, restitution, community service, or jail (which was not requested here). He ordered the driver to 50 hours of community service (Megan had asked for 200), nine months of unsupervised probation, and required her to take a road safety class. The judge assessed four points to her license.
It is disappointing and frustrating that the Jeffco DA’s Office is not on board with using the new law to protect cyclists and punish drivers who hit, harm, or kill them. Just one week before Megan’s case, in another case in Jeffco County, the DA’s Office offered the driver a plea deal. Our client suffered SBI including spinal fractures, a broken shoulder, and damage to his internal organs. The DA’s Office decided to charge the VRU 12-point, but then offered the 8-point reckless charge to the driver. No license revocation. No real setback. A mere $100 fine and 100 hours of community service.
Megan has volunteered her time and energy to train Jeffco Sheriffs, Golden PD, Arvada PD, as well as providing a webinar on cycling law and safety to the DA Statewide Council. She sat on the 1st Judicial District Board and worked for a District Court Judge in Jefferson County. She lives in Jefferson County, owns and operates a business there, and owns residential and commercial property in Jeffco.
“I really felt like living and working here and being so involved in this community would count for something,” says Megan.
During sentencing, Judge Sargent addressed the driver. He reminded her that she was very lucky she had not KILLED Megan, and that if she had, they’d be having a very different discussion. He told the driver that she was not paying the degree of attention that Megan and other cyclists deserve. He asked how many cyclists have to be hit before drivers understand that cyclists use bikes as transportation and stated that we have to protect a vulnerable group. When addressing the community service he had ordered, Judge Sargent said he wanted the driver to find something meaningful and something that will benefit others in the cycling community. He told the driver that she cannot change what she did, but that she can change the future and have an impact. She can be the person who can tell others how easily cyclists can be hurt or killed.
Unfortunately, we do not believe that the driver’s behavior is going to change with just four points and 50 hours of community service. She will move on and forget all about this event, but Megan surely will not. “I don’t believe in this country we are going to have a change in driving behavior until drivers lose their privilege of driving for a period of time, whether it’s 30 days or six months. Someone who has to get around by bike, or get on the bus, or ride the light rail is going to be really careful how they drive around cyclists. It’s for that reason we have the new law,” said Megan when addressing the Court.
Imagine ten years from now. This driver will likely not recall any of this. However, if she loses her license at age 19 for several months, this lesson will stick with her for a lifetime. Maybe she will even tell her friends and family. And as a result of her losing her license, a lot more people would drive more carefully around cyclists. Driving is a privilege, and she should have lost it.
That is what we want, need, and demand from this county to make cycling safer.
We need DAs to stop giving plea deals to drivers. Charge the full 12-point violation or take it to trial. Period. This is the only way drivers lose 12 points, resulting in their driving privileges being revoked. We have a new, amazing law, and it is not being used.
This was an avoidable crash. It was not an “accident.”
Drivers need to be held accountable! And for the first time ever, we have a new law to accomplish that here, for any crash that occurs on or after 5/29/19.
Click here to view 9News’ coverage of the sentencing hearing.
(UPDATED: TRANSCRIPT IS POSTED-CLICK BUTTON AT RIGHT). Our request for cameras in the courtroom was denied (because we were not notified of the hearing plan by the DA until 6:00pm the night before, and these requests require 24 hours processing time).
There are several DAs throwing their names in the ring to run for the 2020 Election of Jeffco’s new DA, now that Pete Weir’s 2 term limits prevent him from seeking re-election. Stay tuned as we tell you which DA we believe will enforce this law and protect cyclists in 2020 and beyond.
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In the meantime, if you have a comment you’d like to submit to the Jeffco DA’s office, you can send it here:
Finally — a note from Megan: to those who believe that only pushing for more bike infrastructure is the way, and that focusing on punishment is not effective. First, stop twitter-trolling and go do something productive. Second, actually get involved doing something, join a committee, donate money to groups like Bicycle Colorado and People for Bikes, attend meetings, vote in city council planning sessions and so on; get off your computer or smartphone and take some demonstrable action (otherwise, we don’t want your opinions). Bike infrastructure doesn’t magically appear. Third- it’s not mutually-exclusive. We can attack bike safety on both fronts, at the same time: put in more bike lanes and protected bike paths, AND also punish drivers who harm cyclists. BOTH.