Friday, July 26, 2013
(Last modified: 2013-07-26 20:10:46)
 

Source: The Newport Plain Talk

Editor's Note: This letter was shared with Plain Talk readers by former District Attorney General Al Schmutzer, Jr.

 

Mark Hicks

Broad Director of Bike Walk Tennessee

3571 Waterford Cove S.

Collierville, TN 38017

 

Dear Mr. Hicks,

 

Thank you for your letter expressing concerns about this case.

First let me make a brief statement of the facts. On the afternoon of July 12, 2011, the victim, Ms. Katelin Richardson, and a friend, Rachael Warren, rode their bicycles from Hartford to Newport by way of Wilton Springs Road and the New Cosby Highway in order to go to a restaurant for dinner. It was on their return to Hartford that evening that Ms. Richardson was struck from behind by the defendant on Wilton Springs Road at about 9:15 p.m. The defendant had a blood alcohol of .08, the legal minimum to raise a presumption of intoxication. At the time of impact, Ms. Richardson was riding in the middle of the east lane of the roadway, and Ms. Warren was riding on the right edge of the roadway in the east lane. The defendant was traveling east in the same lane.

I respectfully disagree with your statement that Ms. Richardson had the option under Tennessee Law T.C.A. 55-8-175 to ride her bike on the right edge of the roadway or in the middle of the lane of traffic that night.

That law requires any person operating a bicycle on a roadway at less than the normal speed of traffic to ride as close as practical to the right hand edge of the roadway. Unfortunately, as pointed out, Ms. Richardson was riding in the middle of the lane when she was struck.

You refer to an exception in the law to riding on the edge if the lane is so narrow that a bicycle and another vehicle can't safely travel side-by-side in the lane. This lane was not that narrow. The defendant's truck passed Ms. Warren, who was riding on the right edge of the roadway, and she was not hit. The defendant's truck was completely in its lane when it struck Ms. Richardson, and there was no evidence it was weaving or otherwise being driven erratically.

The same law also prohibits two cyclists from riding two abreast if they impede the normal and reasonable movement of traffic, which they were doing.

The purpose of the law is to promote safety when bicycles are ridden on the street or highway with motorized vehicles. This is an inherently dangerous situation because of the speed differential between motorized vehicles and bikes.

The law required both cyclists to have been riding single file on the right edge of the roadway where they both would have been safer.

Even without the law, common sense tells you in most instances it is much safer to ride on the right, outside edge rather than in the traveled portion of the road, especially at night.

T.C.A. 55-8-177 requires a bicycle being ridden at night to have a headlight in front and a red light reflector on the rear. Ms. Richardson's bike had only a rear reflector. You state that it had no influence on the crash because it would have been shining away from the truck. However, a reconstruction of the collision showed that a headlamp provided some light even for the vehicles approaching from the rear.

You said that you wished I had fought a good fight, which I take to mean you wished I had tried it. When I first got the case, I anticipated that it would be tried. It was only after I continued the investigation into the facts and the law, including subsequent expert analysis, that I realized it was not as straightforward as I first thought.

To convict someone of vehicular homicide by intoxication, the prosecutor must prove beyond a reasonable doubt that the intoxication was the cause of the collision. The defense only has to create a reasonable doubt that the cause could have been that the victim was in the middle of the lane in harm's way and not readily visible. Unfortunately, three witnesses would have helped create that doubt.

The first witness was proceeding east on Wilton Springs Road at about 7:40 p.m. when he met the two cyclists headed west towards Newport. He reported that one girl was on the outside edge of the roadway and the other was "straddling" the yellow line between the two lanes. As he approached, the cyclist made no attempt to move over. He had to hit his brakes and swerve to his right, dropping his right tire partially off of the black top to avoid hitting her. It was still daylight at this time.

The second witness was traveling south on the New Cosby Highway around 7:50 p.m. when the case in front of her suddenly swerved left into the opposite lane of traffic to avoid what turned out to be the two cyclists riding side-by-side in her lane. One was in the center of the lane and the other was on the right side of the lane. She said she swerved left and just barely missed hitting the one in the middle of the lane. She also stated that it was dusky dark, and she did not see any lights on the bikes or reflective clothing. She told her husband that the female cyclist in the middle of the lane was going to get killed if she did not move over.

The third witness was driving east on Wilton Springs Road going home from work. She says she came up on two females on bikes, riding side-by-side in her lane of traffic. She had to swerve left into the opposite lane to keep from hitting them. She saw no lights or reflectors on their bikes. She said she thought about calling the police when she got home to get the cyclists off the road before they got killed. This would have been minutes before the fatal collision.

I interviewed the defendant's expert accident reconstructionist, who had reconstructed the collision. He determined that the cause of the collision was not the defendant's impairment, but was the defendant's inability to see the victim in time to avoid the collision. This supported the defendant's statement given to officers that night-that he was driving east with his headlights on low beam when his attention was drawn to a girl on a bike on the right side of the road. When he looked back around, he saw, for the first time, another person on a bike just as he hit her. Afterwards, my expert, a Tennessee Highway Patrol accident reconstructionist, who was present during the interview, told me that he knew the defendant's expert from other cases, respected his opinion, and could not refute it.

I knew then that I would have difficulty carrying the burden of proof on causation, because, if they jury found that the collision was unavoidable and would have occurred regardless of whether the defendant was sober or impaired, it would not be vehicular homicide. That is when I decided it was in the best interest of the state and victim's family to work out a plea, which I did. It included a guilty plea to Vehicular Homicide by Recklessness because I felt the victim's actions only mitigated rather than absolved the defendant of guilt.

I agree that motorists need to be more vigilant of cyclists, as more and more are taking to the highways. I think you would agree that cyclists should not take unnecessary risks, placing themselves in harm's way, even if they think their actions are lawful.

You mentioned General Jimmy Dunn. General Dunn was not involved in the case because he had a conflict of interest. That is why I was handling it. To my knowledge, he knew nothing of the plea agreement before it was announced in open court.

Thank you again for your interest in the case.

 

Sincerely,

Al Schmutzer

District Attorney General Pro Tempore

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