As a NY bike accident lawyer, I try to stay informed about bike accident cases throughout New York state. Recently, however, a fatal bicycle accident case right in my own backyard drew a lot of press attention. This fatal accident occurred close by the Ziff Law Firm, in downtown Elmira. I’ve included a link to the WETM-TV video about the sentencing in this case:

Justin Appleby Sentenced to 1 to 3 Years in State Prison

The June 21, 2009, accident was a hit and run. Justin M. Appleby of Elmira was driving his Dodge Durango SUV after 1 a.m. on Grand Central Avenue when he hit 38-year-old bicyclist Michael T. Rautio.

Appleby left the scene of the accident – an act that coupled with the circumstances of the accident itself, has greatly embittered Rautio’s family and many community members against him.

Both Appleby and Rautio had been drinking that night. But only one of them was driving a motor vehicle. After the accident,  Appleby told his wife he had hit a guard rail. He also applied some deer hairs to his vehicle to make it look as though he struck a deer. It appears he was trying to avoid a DWI charge and the consequences of his choice to drive. He did not turn himself in to police until 13 hours later.

All of these details are recounted in a recent Star-Gazette article by Ray Finger, “Elmira man gets 1-3 years in hit-and-run death of bicyclist.” Appleby was sentenced on March 1, 2010, to serve one to three years in state prison for the hit-and-run accident.

The charges against the driver– WHY ONLY LEAVING THE SCENE?

Appleby was charged with Leaving the Scene of an Accident. Why not Vehicular Manslaughter or another charge that reflects the severity of the accident that took Michael Rautio’s life? Why not charge him with DWI?

The answer to that question can be a complex one.  It is the District Attorney’s office, in this case the Chemung County District Attorney’s office, that makes the decision about exactly what crimes will be charged.  They make these decisions after conferring with the police investigators and analyzing all the evidence in the case.  The DA’s office must determine what facts they believe they can PROVE.  As I often say to my client’s:  There can be a HUGE difference between what I think happened, and what I can prove happened. Likewise, the DA’s office must separate all the rumors and speculation from the provable facts.  Once they have done that, they must then decide how those provable facts fit within the definitions of the different possible crimes that they might be able to charge in a particular case.  Every crime requires the proof of certain facts– these are known as the “elements” of the crime.   So after analyzing the facts and the elements, a decision is made about the charges that will be pressed in a particular case.

Let’s use the crime of DWI as an example in this case.  Why was the driver not charged with DWI?  Heck, we know that he was at a bar before the accident so why not charge him with DWI?  DWI requires PROOF that the driver was driving while intoxicated.  Sorry but proving someone was in a bar does NOT prove that he was intoxicated.  It does NOT prove he was intoxicated at the time he was driving.  That sort of proof often comes from a breathalyzer test or blood test administered to the driver shortly after the accident.  Here, the driver did not turn himself in to the police until 13 hours later which is way too late to be able to prove intoxication.

Please don’t get me wrong.  I do not condone what this driver did.  Frankly, I think he’s a piece of garbage to know that he hit someone and left them to die on the side of the road without rendering any sort of aid or assistance. Do I think he was drunk when he ran down this poor bicycle rider?  Yes.  But could I prove it?  No, not based on what I currently know about this case.  Do I think this drunk driver probably avoided a DWI conviction by hiding like a cowardly dog?  Yes.

But with all that said, I do understand why the DA’s office might have made the decision to charge the crime they could PROVE rather than other crimes where they simply didn’t have the kind of information that would have been required to win a conviction.  Unfortunately, lawyers have to make tough decisions about proof all the time…..

The Judge’s sentence

Chemung County Judge Peter Buckley sentenced Appleby to the maximum for the charge against him – one to three years in state prison. Judge Buckley said that “Justice calls out for only one result, which is state prison.” Although it is likely that Rautio died instantly from his severe injuries, the judge also pointed out that to sentence Appleby to less than the maximum would send a message that you can get off lightly for leaving an injured person at an accident. How much worse for Rautio – or any bicycle accident victim – if they are left to suffer without assistance.

Community reaction

In the courtroom, the community, and in online  bicycling forums, many are expressing their feelings that the sentence was too light. In the courtroom before sentencing, Rautio’s mother and sister addressed Appleby, saying how much they hated him for depriving them of a son and brother.

The practical realities of PROVING the crime

It is tragic to the families of accident victims such as Michael Rautio, but the truth is that there a big difference between thinking you know what happened versus being able to PROVE what happened. That burden of proof is an exacting standard for attorneys seeking justice for clients and for the judges upholding the law.

In this case, the accused received the full sentence for the charges law enforcement officials were able to prove against him. To the accident victims family and an angered community, it’s not nearly enough.

Thanks for reading,

RIDE SAFELY!

Jim
_______________________________________
James B. Reed, Esq.
NY & PA Bicycle Accident Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: jreed@zifflaw.com
Web: www.zifflaw.com
Please visit the New York Injury Law Blog at www.NYInjuryLawBlog.com
E-mail me at FreeReports@zifflaw.com for two free books:

NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

As an attorney who handles many bike accident cases every year and is also an avid bicyclist, I have seen a growing hostility toward cyclists from the motorist community in the last few years.

Sometimes I begin to think that my opinion about this is just my imagination, caused by the fact that I ride almost every day and meet with cyclists every day, so I am just exposed to it more than others.

But I just learned of a Facebook FanPage that confirms it is NOT my imagination and that there are MANY, MANY, MANY motorists who are willing to openly declare war on cyclists.

This page is called: “There’s a perfectly good path right next to the road you stupid cyclist!” and it features gems like these:

• “No matter how far to the left you are, you’re taking up my road.”
• “My car is hard, and I am not slowing down!”
• “Cars are hard, cyclists are not.”

Lest you think this is an isolated phenomena, this FanPage has more than 36,000 fans! It’s sickening to me that anyone would become a “fan” of such a demented page.

It’s truly frightening (and sad) that there are more than 36,000 people who are willing to publicly proclaim that cyclists have no right to be on the roads.

Let me be clear: In New York, a bicyclist has a perfect legal right to be on the road. Motorists may not like that fact but that’s the law.

I represent injured cyclists every day and I know first-hand the devastation a car vs. bike collision can cause — death, paralysis, fractures, huge lacerations — are common. I have no hesitation at all to pursue the insurance and every asset of any motorist who disregards New York state law and hits one of my clients.

I truly wish motorists would learn to respect bicyclists rights and treat them with respect. Sad to say, there are many ignorant people who consciously disregard the safety of vulnerable cyclists.

Thanks for reading and RIDE SAFELY,

Jim
_______________________________________
James B. Reed, Esq.
NY & PA Bicycle Accident Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: jreed@zifflaw.com
Web: www.zifflaw.com

Please visit the New York Injury Law Blog at www.NYInjuryLawBlog.com
E-mail me at FreeReports@zifflaw.com for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

There is often great confusion about the distinction between civil and criminal law in bicycle accident cases so I wanted to address this issue and hopefully provide some clarification.

To put it simply:

• Criminal cases involve intentional or criminally reckless conduct that violates a particular criminal law.  Crimes are punished by imprisonment, fines or other penalties imposed by law.
• Civil cases involve a failure to use reasonable care that results in injury or damage to another person.  Civil cases involve payment of money to the injured party by the person (or his insurance company) who negligently caused the injury.

As with almost everything in the law, this simple explanation requires more explanation. Please bear with me as I explain the important distinctions with greater detail.

Civil Claims for Injured Bicyclists

As an avid cyclist myself, I know all too well the dangers we bicyclists face due to careless or inattentive drivers.  We all know them: the drivers who are busy talking on their cell phones … adjusting their radios … or simply not watching where they are going.

Unfortunately, those moments of carelessness or inattentiveness by drivers can mean the serious personal injury or even death of a bike rider who has virtually no protection against a huge car or truck.

In those cases of motorist carelessness or inattentiveness (lawyers refer to this as “negligence”) that harm a bicyclist, I am often hired as a New York or Pennsylvania bicycle accident lawyer to pursue a civil claim or lawsuit against the insurance carrier for the driver who hurt or killed the cyclist.

Civil Claims

A civil claim means a claim for compensation (money) to compensate the injured bicyclist for his or her injuries, disability, lost wages, medical expenses, damage to the bicycle or other damages.

A civil claim does NOT involve putting someone in jail, putting them on probation, taking away their driver’s license or forcing them to pay a criminal fine.  Those types of penalties are imposed by our CRIMINAL laws.

Criminal Cases

As noted above, criminal cases involve intentional or criminally reckless conduct that violates a particular criminal law.  Crimes are punished by imprisonment, fines or other penalties imposed by the applicable law.  Each state and or municipality enacts laws that are designed to prohibit behavior that is harmful or dangerous to the public.  Because each state/municipality has its own laws, there is often wide variation between the laws in one state versus the laws in another state.  That’s why you must be very careful in reading legal information on the Internet because a legal discussion that involves the analysis of the law in one state may be totally inaccurate in another state.

Criminal cases are prosecuted by “the State” — that is, the police and the criminal prosecutor’s office — NOT by your own private attorney.  Private, civil attorneys like myself, can certainly confer with the criminal prosecutor (called the District Attorney or “DA” in New York), offer investigative assistance and try to encourage prosecution of particular criminal defendants, but ultimately all strategic decisions are made by the prosecutor’s office.  This can be extremely frustrating to bicyclists and their personal civil attorneys when either the police or the DA decides not to prosecute a motorist’s crime against a bicyclist.  In the event that the prosecutor decides not to press charges, the cyclist’s only remedy is to pursue a civil claim.

Burden of Proof

In all cases, whether civil or criminal, the party bringing the lawsuit (the “plaintiff” in a civil case or the “prosecution” in a criminal case) has what is called the “burden of proof.”  That is the standard of proof that must be proven for the party bringing the lawsuit to win.  At the end of a case, either the judge (if it is a “bench trial” which is a trial to a judge only) or the jury (if it is a jury trial), must deliberate and reach a decision as to whether the plaintiff/prosecution met their burden of proof on every required element of the case.

There is a drastic difference in the burden of proof that is applicable in a criminal versus civil case:

• In a criminal case, the burden of proof is “proof beyond a reasonable doubt.”  This is a very high standard as it means that if a juror has ANY reasonable doubt about the proof of any element of the crime, then they must find that the prosecution has NOT met their burden of proof.  Accordingly, the defendant would be found innocent of the charged crime.
• In a civil case, the burden of proof is “proof by a preponderance of the evidence”.  This is a much lower standard and it means that the plaintiff only needs to offer slightly more evidence than the defense in order to win.  Judges and lawyers often illustrate this burden of proof by asking jurors to imagine the scales of justice and if the scales tip just slightly more to the side of the plaintiff, then the plaintiff has sustained their burden of proving their case by a preponderance of the evidence.

I hope this explanation shines some clarity on the relation between civil and criminal claims.  In many of the bike accident cases I handle there is a close interplay between the criminal and civil cases:

• The motorist who hit my cyclist client is charged with violations of the traffic law and the police and the DA’s office prosecute those violations.  If convicted, the driver can be fined (that money goes to the State, not the injured bicyclist) or ordered to pay restitution (that is money paid by the driver to the bicyclist as ordered by the criminal court).
• I represent the cyclist in a civil claim for their disability from work, their medical bills, the damages to their bicycle, their pain and suffering, etc.

My goal on behalf of my injured bicyclist clients is to make sure that they are FULLY compensated for ALL damages suffered by them.

Thanks for reading and RIDE SAFELY,

Jim
_______________________________________
James B. Reed
New York & Pennsylvania Bicycle Accident Lawyer
Email me:  jreed@zifflaw.com
Call me:  800-ZIFFLAW (943-3529)