Golden to COS with dogs: a bike adventure

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I have always wanted to go credit card camping on a bike adventure…. By that I mean- ride somewhere cool with a credit card, clean pair of clothes and flip flops, and explore the new spot, then maybe ride back.

On Tuesday of this week, my friend Chris introduced me via email to the owner of the Buffalo Lodge Bike Resort in Manitou Springs, Colorado Springs, saying, “Megan, you need to know this place and the woman who owns it!” I checked out this cute spot online and as I looked ahead to the upcoming weekend I thought- why not go and visit? When I learned they were hosting a “folk & flannel” festival with live music, I decided I was in— I was ready for a new spot to visit and a new adventure to experience …

I don’t know why but my immediate reaction to their website (upon learning that it is ALL about bikes AND that it loves dog guests), is “I gotta take my girls with me.” I have taken my dogs on short bike-trailer rides like to the vet and to the park but never more than 5-6 miles. This would truly be an adventure for all 3 of us. ;)

I don’t really talk much about my dogs but since they are my family I feel they deserve a bit of storytelling time here…

My girls are a 14 year old pittie pup named Phoenix and my 9-year old endlessly energetic running partner, Ramsey aka Rambo. 14 years ago on a bike ride, I found a mom pup and a box of 5 puppies someone had stashed under a bridge embankment in KCMO - they were pit mixes, illegal in KC at the time and it was clear someone just wanted to be rid of them. I took them to the vet as they were all in very poor health- the puppies were only a few weeks old and were starving, dehydrated, had heart worm, etc. Once we got them in good health I was able to find homes for them all- primarily with friends but I kept the runt- the peanut butter brindle girl and named her Phoenix, as in, risen from ashes. She has survived and outlived her siblings and a major neck surgery and even a dire prognosis back in July and she’s still here with me game for morning walks, human food, and face licks. I know my time remaining with her is running short so I savor my days with her by my side.

I say all the time that I rescued her once, but she’s rescued me right back 100-fold.

She’s truly a special animal.

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Ramsey is also a rescue- we adopted her in 2011 from Foothills animal shelter in Golden right about the time I was trying to mourn the death of my bike racing dreams after a heart-breaking season. We asked for a puppy and she is what they had that day- approximately 9 months old they told us she was a “tri colored collie” and not knowing any better we accepted that as true … well she’s not really a collie, though she is clearly a working or herding dog of some kind. The closest thing online I’ve found for her is a “new zealand heading dog,” described as virtually inexhaustible, and that sounded about right… Ramsey has been my Ironman running training partner and is known to go on a 12-14mile run and then come home to immediately grab her ball to play fetch. She is wicked smart and teachable - she thrives with exercise and mental stimulation.

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Combined, Phoenix and Ramsey are quite a duo- protective of me when it’s called for, otherwise fairly relaxed and chill once they’ve had a bit of exercise— just like their Mom ;) …

Initially as I began planning this trip- I thought that I might leave Phoenix home since she’s old and tired and loves to sleep all day AND she weighs about 55#. But then I felt bad for leaving her out of our adventure. So I decided we’d ALL 3 hit the road - four days later - Friday - and ride from our house in north Golden down to the resort in Manitou, COS.

Early mapping recon showed me this would be around 100 miles and approx 4500 ft elevation gain. Not a big deal by Colorado and front range riding standards (honestly) … but taking into account the 90#+ of dog weight plus Burley trailer weight + supplies and backpack weight, the difficulty in this ride would come from me basically doubling my body weight. I weigh 120# on an average day and I was undertaking the task of towing my bodyweight behind me- asking my legs and body to push around 240# on this adventure.

Could it be done? “Only one way to find out,” is my usual response.

After scouting the route and using Ride with GPS to create the route and download the file to my garmin so I’d have turn by turn help in the unfamiliar areas, I turned my focus to packing.

Backpack contents????

Backpack contents????

I feel like I nailed the goal of keeping it light yet covering all of my bases. The one thing I wanted to bring but couldn’t squeeze in was my tennis shoes- so I settled for flip flops even though the evenings are cool now. And it would limit my hiking options. The one other thing I forgot in light of the evening festival was a stocking hat to keep my head warm at night. (I bought one once I arrived). Otherwise I covered it all and kept my backpack pretty manageable. I’d guess it weighed in around 15-20#.

The start … and so it begins ;)

The start … and so it begins ;)

Friday morning, it was time to depart. I figured optimistically we would average 10mph including the stops I knew we’d need to make for the girls and for me to refuel. And that ended up being spot on. We left at 8:16am and (spoiler alert) we rolled into the hotel exactly ten hours later, 6:16pm.

The route was great leaving Denver- I know the roads out of Golden, and the C-470 trail took me south towards Chatfield. While we were in BCLP, I let Ramsey out and she ran alongside me for awhile to burn up some energy.

I decided to stop at a gas station off the trail to grab a jug of water - while I hated to add that extra weight to our rig for the remainder of the day, I wasn’t sure when we’d be able to fill bottles again once we got further south. (Turned out to be a GREAT plan - we never had to stress about water, and to be candid, there were no other spots to stop the rest of the way!).

I took the bike path into Chatfield where we enjoyed nice smooth bike lanes through the park. We stopped for a quick stretch and snack at one of the campgrounds before leaving the park. From that point on I was entering the unknown part of the day.

Douglas County surprised me with these brand new glorious bike paths leaving the park headed towards Titan Road, and a nice bike path along Titan - PLUS huge bonus, I was able to skip 85 by heading south on the road just west of Santa Fe instead (south on Moore Road) , and low&behold discovered a new and gorgeous stretch of road near the airport that made that entire stretch a breeze (Airport Road?). We took that to the frontage road and just like that we were in Sedalia.

…but then it was time to tackle 105.

This was the stretch I was most worried about after reading other people’s accounts online. I knew it was the most common cycling route however it didn’t have a shoulder and was heavily trafficked by trucks and semis. I was not prepared for the difficulty I would experience in the endless rollers. The miles ticked by painfully slow and on several climbs I had to get off and walk and push the bike and burley uphill … thankfully every overtaking vehicle (except for one) was kind to us. But the volume of traffic was much heavier than I expected.

I wasn’t able to look around much and enjoy the scenery, and I neglected to eat or drink enough on this section which further resulted in the proverbial wheels falling off…. it was a rough stretch and for those thinking of doing this route, I am not going to sugar coat it - I was desperate to get that part over.

We were SO lucky to have a tailwind the entire stretch.

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Finally we arrived at Palmer Lake and the entrance to the Santa Fe trail- which would take us through Monument and the Air Force Academy and south into COS. I breathed a HUGE sigh of relief, since the remainder of the journey would all be bike path. THAT SIGN WAS SOOOOO GOOD TO SEE!

Ramsey got out again and ran alongside me for a few miles - we took in the sights of Palmer Lake and Monument:

On this stretch about 10 or so miles south, my friend Chris (mentioned above), met me and escorted us through the final 20-25ish miles on the bike paths through COS -into Colorado city and finally into Manitou Springs to the Bike Resort. I was so thankful to have him navigating those miles so that I didn’t have to stop and consult my phone or the bike trail maps. My brain was fried by that point of the day.

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As we rolled into the Bike Resort we were greeted by the owner and she came out and took photos of my tired little caravan - by that point the pups and I were exhausted and hungry. Thankful for arriving before the sun went down, I got us settled, showered and then pursued food. I was tired and the pups were tired too—but it felt so great to have accomplished the thing I set out to do. And the girls were so good all day and so cooperative with my crazy idea. ????

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Saturday at the Resort was a blast. The resort owner Torie led a morning group ride through Garden of the Gods to the Castle, and there was no way I was going to miss this (even though yes let’s be honest my legs were tired!). I detached the trailer, downed coffee, savored a fresh chamois and a clean bike, and off we went for a gorgeous spin. ?? ??

Saturday afternoon included a kombucha and then an evening walk with the girls, followed by the Folk & Flannel festival hosted at the resort. Such good times and fun - just being part of community, even while wearing masks and keeping our distances, felt so good for the soul.

The original plan was to ride back home Sunday - but after having such a fortunate ride with zero mechanicals, flats, incidents with motorists or injuries- I decided not to press my luck and instead opted to “phone a friend” for a lift home. Aka - Bill, owner of 303 Endurance. Serendipity played a role here - he had texted Friday to thank me for a package I’d sent him. I’d responded during the ride telling him what I was doing — then, full circle and because he owns a cycling media company, he wanted to check out the resort anyways —he got to interview Torie about the Resort and hear all about its history from her, so it worked out great. Check out 303’s Video interview of Torie HERE.

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Before he arrived, we snuck in one last walk and I hopped on the bike for one more short spin through GOTG…

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All in all and as you can tell above, it was an amazing experience and wonderful weekend.

The top questions I got from folks along the way and at the resort were:

  1. What route did you take? View the route on RIDE SPOT- HERE. (My Strava post is HERE but it’s private unless you follow me). Generally speaking the route was: Golden to BCLP, to 470 trail, south to Chatfield, through the park to Titan Road, to Airport Road, to Sedalia. Then, Hwy 105 south to Palmer Lake. Sante Fe Trail south into COS, then city bike paths the rest of the way. Approx 95 miles/4500 ft elev gain, give or take.

  2. Have you done this kind of thing before? No- not really. A bike Packing trip 4 years ago but that didn’t really count as there were no dogs involved.

  3. Did you train for this? No. This idea was hatched on a Tuesday and the ride happened Friday.

  4. What kind of sunglasses are those? Ride 100% (not sponsored). Highly recommend.

  5. What made you want to do this? Haha have we met? If you don’t know me, know that my answer is usually -”Why not?”

  6. Do your dogs just lay down in the trailer? Mostly, yes. They face opposite directions so that they each have a view (either forward or backward) and we stopped often enough they got to get out and stretch their legs, have a snack and a drink, and then they were game to hop back in. (Ahem- copious treats help).

  7. What did you eat along the way? Normal bike food- Crafted Energy Bars, Clif Blocks, a couple bananas, Skratch hydration mix and then I also had sour gummi bears in my bento box which were the only thing that sounded good to me late in the day. Probably did not fuel enough as I reflect back on the day- that is an area for improvement for future adventures.

A Battle Every Step of the Way

Ben Boncella has been a State Farm customer for years. When he was hit by a driver whose insurance company was also State Farm, he thought the insurance company would be more willing to “take care of their own.” He realized how off-base his thinking was a week or two into the process of trying to handle his own claim.

Additionally, Ben feels that the insurance company/claims adjuster will give you zero respect if you are trying to resolve a claim on your own. “Although they try to come across as being nice and friendly, they are trying to take advantage of you by getting you to admit fault or partial responsibility for the crash.”  

Ben thought his case was clear cut, and that he would be successful in handling the claim himself; a police officer had witnessed the crash and the driver, who admitted that she was in the wrong, was cited at the scene. Yet State Farm denied responsibility to pay out his claim for bike repairs, property damage, and medical bills. “I was extremely surprised by how unwilling the insurance company was to pay my claim. I thought it would be very straightforward – they would pay for the damage to my bike and kit and cover the medical expenses I incurred as a result of the collision,” he says. “I wish I would’ve known how much of a pain the entire process of battling the driver’s auto insurance was going to be.”

When State Farm outright denied liability after months of working at it himself, Ben decided to contact and hire our firm. “As soon as Megan got involved, their tone changed immediately, they became more responsive, more cooperative, and the process of getting this resolved was expedited,” he says. 

The big takeaway from the whole process for Ben? It doesn’t matter how obvious the case/incident, the cyclist will always have to fight every step of the way. He was in a bike lane, riding below the posted speed limit, wearing brightly colored clothing, at a safe time of day, traveling on a route commonly used by local cyclists, had lights on his bike, a police officer witnessed the crash, the driver was cited on the scene, etc. “It doesn’t matter that you do everything right, and it’s extremely obvious. Insurance companies are out to make money, so they make you fight for everything. Do not give up!”

It was the morning of June 8, 2018, around 6:30 am when Ben was riding his bike to work heading north in the bike lane on Garrison Street in Lakewood, CO, and was coming up along vehicles that were stopped at a red light. Ben was wearing a cycling kit, a helmet, and sunglasses along with a backpack full of work clothes.

As he was riding through the intersection at Garrison and West 1st Avenue, the driver of a Ford Ranger pick-up truck failed to yield to Ben while making a right-hand turn, causing a front to side collision. Officer Arellano, who witnessed the crash, stated that Ben was not speeding and was riding properly in the bike lane with safety attire/equipment. Ben was not able to stop quickly enough to avoid the collision since the vehicle turned right in front of him.  He crashed into the front right side of the vehicle. 

The driver stopped immediately after hitting Ben and told the officer that she saw Ben but did not think he would be at the point of the turn. Officer Arellano stated that the driver was clearly at fault and that she needed to be better aware of the road and her surroundings to include checking the bike lane before turning. There were no obstructions, weather, or road conditions that would have affected her view of Ben or her ability to wait for him before turning according to Officer Arellano.

Ben was treated at the West Metro Fire Station, which is located directly across the street, where his injuries were cleaned up and bandaged. Ben finished his ride into work, but he went to St. Anthony's Hospital to get treated when his symptoms worsened after a few hours.  He had road rash on the left side of his body and had a CT of his head and spine done as well as x-rays of his chest and wrist.


Citation:  Careless driving, pleaded down to an unsafe vehicle charge.

Fines/Penalties: Two points assessed to the driver’s license and $134 in fines.The driver has two past convictions in 2004 in Lakewood and Denver, where she was also charged for driving an unsafe or defective vehicle.

Ben feels like it is way too easy for drivers to get charges reduced.

She should have pleaded guilty to the charge the police officer cited her with because that’s what actually happened. If we keep letting people off easy, they’re never going to get any better and cyclists aren’t going to be any safer.
— Ben Boncella

Eventually, Ben was back on his bike, but it was painful and he obviously wasn’t 100% healed physically. It took awhile before the swelling, bruising, road rash, and soreness went away, but he was eventually back to his normal riding and workouts. 

He was nervous to get back on the roads after the crash and rode a lot more bike paths afterwards.  Gradually, Ben transitioned back to more and more road riding, but even to this day (a year and a half later), he is still nervous riding through intersections. “Drivers don’t use their turn signals enough or check their passenger side mirrors before making right hand turns,” he says. 

If he could wave a magic wand, Ben would make the punishment for drivers who hit cyclists much more severe.  “All it takes is a quick Google search and you can read hundreds of stories and articles about drivers hitting and killing cyclists yet only having to pay a small fine or do some community service. It’s sad to see how little the life of a cyclist is valued in these situations.”

Ben recommends that every cyclist get educated about local cycling laws/regulations and follow them when riding. Ride defensively when you need to, but also be courteous and respectful to drivers as much as possible.

Although Ben initially tried to deal with State Farm on his own, he was glad that he handed over the case to our team. “When I spoke with Megan about having her take over my case, she was extremely up front and honest about what would be involved, the timeline, the outcome, the financial side of things, etc. In the end, things worked out almost exactly as she had initially described them to me. The whole team was incredibly well organized and thorough. I’m not happy to have gone through this, but I’m glad that I had such a great team of people on my side fighting for me.”

Drunk Driver Hits Cyclist From Behind, Flees Scene - Insurer Asserts Comparative Negligence Defense

On June 9, 2015, Brandon was out for a bike ride.  Having recently moved to Colorado, this was one of his first few rides in the Littleton area.  It was just before 6pm, and he was on his way back home. 

Without warning, Brandon was hit from behind by a motorist, and thrown off his bike into the street. His head, face, hands and knees were bleeding badly.  Despite his obvious injuries, the motorist fled the scene.  Brandon recalls none of this- as his next/first memory was waking up in the emergency room, where he’d been transported by ambulance.

Luckily, a passerby witnessed the event and caught the license plate number of the fleeing motorist.  Police were called and located the driver in her home about an hour after the collision.  She was drinking Schnapps...  The officers conducted a Blood Alcohol Test (BAC). 

We later learned that the motorist worked for police and fire dispatch.  It is believed she thought that if she began drinking at home, perhaps the BAC could not conclusively prove she had been drinking at the time of the crash.  However, when results came back showing her BAC was .317, her theory fell apart.  This level of intoxication meant that she either drank to near-deathly levels in that one hour, or more realistically, she had been drinking before the crash, was intoxicated at the time she hit Brandon, and then continued drinking once home. 

Hit a human.  Leave.  Run home and start slamming shots?  Say what?

The driver was cited with numerous violations.  During the pendency of her criminal case, we learned that her versions of what happened varied drastically;  from, “I thought I hit a pothole,” to “A cyclist darted in front of my car,” to “The Arby’s fell off my passenger seat onto the floor and I reached down to pick it up.” Suffice it to say, these explanations all fell short of accepting responsibility.

Meanwhile, Brandon had hired our office to represent him, and we had begun the process of pursuing the motorist’s insurance – State Farm (SF)–for his injuries and claims.  As in our last blog post, SF’s initial settlement offer was grossly inadequate in light of his injuries, as well as in light of their insured’s/the motorist’s conduct.  At our urging they increased their offers, minimally, $5000 at a time, though ultimately still way outside the realm of possible settlement value.  This, despite their insured’s guilty plea in the traffic/criminal case...  SF seemed to think that they did not owe my client adequate compensation. So, we filed suit.   

In Colorado, when someone commits negligence, but also does so with exacerbating factors, (or what we like to call, willful and wanton conduct), a Plaintiff is permitted to seek leave from the Court to add an additional claim for punitive damages (C.R.S. 13-1-102).  Punitive damages are not based on any damages or claims that the Plaintiff incurred – they are solely intended to punish someone for their misconduct.  A jury may award any amount it chooses for punitive damages – it is solely intended to punish someone with a large monetary verdict.  In Colorado, insurers don’t eventually pay a punitive jury award – the actual wrongdoer does.  Here, our plan was to amend our Complaint to add a claim for punitives, to allow the jury to punish the driver for her conduct with – we hoped – a large monetary sanction. 

However, before we got to this juncture, we noted the content of the Answer filed by State Farm’s defense counsel.  In it, State Farm, on behalf of its insured/at-fault driver, asserted some curious affirmative defenses, including one that claimed Brandon contributed to the collision:

"The proximate cause of Plaintiff's claimed damages and/or injuries, if any, may have been Plaintiff's comparative negligence, which conduct either bars or reduces Plaintiff's recovery, if any, in accordance with Colorado's Comparative Negligence Statute.  C.R.S. 13-21-111 (2015)." 

SF also claimed that it must’ve been someone else that caused Brandon's injuries and damages:

The proximate cause of Plaintiff’s claimed damages and/or injuries, if any, may have been the act or omissions of a third party or parties whom Defendant has no control, to whom Defendant has no relationship, and for whom Defendant is not legally responsible.”

Interesting.  

Now in the practice of defending law suits, it is fairly common for the Defendant’s Answer to contain some boilerplate language, as well as boilerplate affirmative defenses.  However, under the Colorado Rules of Civil Procedure, "The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."  (C.R.C.P. Rule 11(a)).

Keep in mind that by the time the Answer was filed, the motorist had pled guilty in the criminal case to charges resulting from her careless driving causing injury, her fleeing the scene, and her driving while intoxicated.  While the burdens of proof are different in the criminal and the civil cases, and her plea of guilty in the criminal case would not per se be admissible in Brandon's civil case, her attorneys knew that she had confessed to her actions.  They knew, because we’d provided them the transcript of her sentencing hearing... Where I was present, as was Brandon and his wife and their young son. 

Imagine our surprise then, to see SF take this approach in litigation.  We could not wait to see what they claimed Brandon did, to contribute to him being hit from behind by their drunk driver!  We found this conduct very curious – that the defendant and her counsel would deny her responsibility and negligence, in this pleading filed with the Court.  We wanted very much for the jury in this case to hear about her denials and to compare that to the testimony of the bystander who witnessed the collision, and the testimony of the law enforcement officers who visited her home shortly after.  We wanted the jury to compare her denials of fault with her legally-documented intoxication.  What a trial this would be! 

SF counsel by filing such an Answer, had placed its insured in a very precarious position: punitive damages would not be paid by SF, nor could their insured discharge them in bankruptcy.  If we went to trial and got a large punitive award, this Judgment would follow (and likely financially cripple) the driver for life.  And Jeffco juries are known to punish people who do things like this with large punitive verdicts.  Imagine the jurors' response to hearing that the Answer and legal position adopted by the driver and her counsel, was that Brandon had done something to contribute to this collision!  SF had exposed its insured to this very real possibility, with the Answer it filed.  It made statements in the Answer that arguably violated Colorado Rules regarding pleadings and implicated sanctions. 

We pointed out this interesting scenario to the lawyers at SF.  The case settled shortly thereafter, for the amount we demanded pre-suit.

Boilerplate language in a Defendant’s Answer given these facts, was a game changer.  Moral of the story: while multi-billion dollar insurance companies may have large, well-staffed law firms and attorneys at their disposal, failure to pay attention to the actual issues can be devastating.  This is why our firm controls (carefully!) our caseload, and this is why we read Answers and affirmative defenses carefully, and show up at sentencing hearings.  Bottom line: we won’t allow our injured clients to be bullied.  To have a driver drink, hit a cyclist from behind and flee the scene, and then to have the audacity to respond in an Answer that he was in ANY WAY at fault or a contributing factor, is offensive. Sometimes a case resembles a really hard bike ride: It's a slog to the top of the climb, but hanging in there, and continuing to work hard, does pay off.  Once again we had a tenacious client, who was not desperate to settle, and who was game to take this case all the way to trial. It takes courage and fortitude- as I've discussed in previous blog posts.  

Now, what about that driver?  What happened to her?  The day of her sentencing hearing in Judge Enquist’s courtroom (Jeffco) was the Monday following a Friday hearing, in which a young man who’d been drinking, drove up Lookout Mountain on the wrong side of the road and caused cyclist Tom Flanigan’s death.  There, Judge Enquist had sentenced the driver to the max allowed under the terms of his plea: 10 years in the Department of Corrections (DOC).  Now, 3 days later, Judge Enquist was again hearing facts of a drunk driver hitting a cyclist.  She was beyond furious.  Under the terms of the plea reached with the District Attorney’s office, the Judge sentenced this driver to six years - the max she could order under the plea.  Counsel for the Defendant asked for a stay of execution (a few days’ time) so that the driver could get her affairs in order.  The Judge said no – she was remanded immediately and began serving her sentence that day.  Of the 6 year sentence, she will likely only serve 12-15 months total. 

Did we want to see this mother and wife sit in a jail cell?  Did it make Brandon and his wife happy, or feel any better?  Did it feel like justice?  Of course not.  We all wish this had never happened and that this woman had not chosen to drink, drive, hit a cyclist and then intentionally flee the scene.  It impacted everyone's life in a negative way.  Situations like this are exactly the reason why Colorado bike advocates worked with the legislature to make the hit-and-run statute penalties stiffer: because if someone "accidentally hits a cyclist," that’s bad enough, but if they intentionally leave the scene and EMS is not immediately summoned to care for the cyclist, they may (and often do) die from their injuries.   Leaving the scene of a bike crash is an act that deserves to be punished harshly. 

If you’d like to read the sentencing hearing transcript: 

Is it legal to wear earphones while cycling in Colorado?

A recent cycling organization newsletter featured a“Bike Law Q&A,” wherein the author addressed the legality of wearing earphones while riding your bike: 

I personally agree with the author’s statement that, “while Colorado Law prohibits the operator of a motor vehicle from wearing earphones while driving, the law does not apply to bicyclists.  That’s because the statute specifically refers to ‘motor vehicle’ rather than ‘vehicle.’” 

However based on an experience I had in Denver Traffic Court last summer, I want to share with Colorado cyclists the reality that some City Attorneys and Judges may see it differently…

Colorado law prohibits the operator of a motor vehicle from wearing earphones while driving:

§ 42-4-1411. Use of earphones while driving

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(1)(a) No person shall operate a motor vehicle while wearing earphones.

(b) For purposes of this subsection (1), “earphones” includes any headset, radio, tape player, or other similar device which provides the listener with radio programs, music, or other recorded information through a device attached to the head and which covers all of or a portion of the ears. “Earphones” does not include speakers or other listening devices which are built into protective headgear.

Well what exactly is a “motor vehicle,” and is a cyclist within that definition?

42-1-102. Definitions

As used in articles 1 to 4 of this title, unless the context otherwise requires:

(58) “Motor vehicle” means any self-propelled vehicle that is designed primarily for travel on the public highways and that is generally and commonly used to transport persons and property over the public highways or a low-speed electric vehicle; except that the term does not include low-power scooters, wheelchairs, or vehicles moved solely by human power.

Cyclists should therefore be considered vehicles, moved solely by human power, but not “motor vehicles.”[1]

It would seem to follow then, that a cyclist could not be cited or charged pursuant to section CRS 42-4-1411 for wearing earphones under Colorado statute, because a cyclist is not a motor vehicle and the statute only addresses motor vehicles ….

Right?   

Last summer I had the opportunity to make this very argument in Denver Traffic Court.  The City Attorney filed a motion to add additional charges, one of which was a charge for wearing earphones.

At our motions hearing, I argued that this citation could not apply to a cyclist because he is not a “motor vehicle.”  If the Colorado Legislature had intended CRS 42-4-1411 to encompass cyclists, low-power scooters or similar, it would have used “vehicle” instead of “motor vehicle.”

The Denver City Attorney’s position was that CRS 42-4-1412(1) trumped the definition of “motor vehicle” in CRS 41-1-102, making it illegal for cyclists to wear earphones.  

CRS 42-4-1412(1) states:

Every person riding a bicycle or electrical assisted bicycle shall have all of the rights and duties applicable to the driver of any other vehicle under this article, except as to special regulations in this article and except as to those provisions which by their nature can have no application.

To illustrate, I include excerpts from the transcript of our hearing:

MS. HOTTMAN:  With regard to the charges that the City proposes, I’d like to start with the headphones charge. As Your Honor pointed out earlier, that statute applies to motor vehicles. Pursuant to the statute, it says, “No person shall operate a motor vehicle while wearing headphones”. When you look at the definition section, 42-1-102, it specifically defines motor vehicles. And it specifically excludes low-powered scooters, wheelchairs, or vehicles move solely by human power, which by definition includes bicycles. On its face, that statute cannot apply to a bicyclist.

THE COURT: Okay. Thank you. Any response?

CITY ATTORNEY: Your Honor, if I may respond. As to the headphones charge, Your Honor, I understand the Defense’s argument that it only applies to motor vehicles. That argument, same argument can be made for all the statutes under the motor vehicle code. The Legislature has seen fit to add 42-4-1412 for that specific purpose of saying bicycles are to be treated exactly as cars for this section. That is the purpose of adding those. And although it states motor vehicles under the use of earphones while driving, 42-4-1411, it still applies. It is still under the sub-—under the section of bicycles being applied to cars.

The Traffic Court Judge subsequently allowed the addition of the earphone charge. 

Based on these inconsistencies in interpretation among city attorneys, private attorneys, and judges, Colorado cyclists should be prepared to face legal repercussions if they choose to wear earphones while riding.  This issue is most likely to arise in an accident between a cyclist and a motorist, when the police investigate the facts surrounding the accident and discover that the cyclist may have been wearing earphones.  Then it becomes an issue of apportioning fault among the parties, i.e. was the cyclist contributorily negligent by wearing them because he/she could not hear the car approaching from behind, for example. 

This article also appeared on 303cycling.com on January 22, 2014