Cyclists who ride with a camera can provide irrefutable video evidence of criminal near miss incidents: specifically assault and reckless driving. Yet there have been cases where law enforcement, specifically the California Highway Patrol (CHP), refused to charge drivers in criminal near miss incidents because the cyclist could not positively identify the driver in the video or in a photo line-up.
Part of our mission is to identify and remove legal barriers to cycling safety by setting precedents that all cyclists can leverage to educate, and in some cases prosecute, egregiously aggressive drivers, before collisions occur. Cyclists’ video evidence contains a wealth of objective information documenting incidents as the basis for investigations that then lead to positive identifications. Alameda County Assistant District Attorney Paul Hora, who is in charge of the East County Hall of Justice in Dublin, confirmed during our Town Hall panel discussion that a positive driver identification is not required in cyclists’ video evidence.
Our Town Halls are innovative, frank, respectful and public discussions about the legal barriers to cycling safety with law enforcement, district attorneys, drivers and cyclists, all in the same panel discussion, along with audience participation. The topic of having to positively identify the driver in cyclist video evidence arose during our 6/14/18 – Enforcing Laws For Cycling Safety – A Free and Innovative Town Hall.
We began the town hall with our new compilation of criminal near miss videos from Alameda County and Marin County. Be sure to watch both videos in full screen mode. The first compilation video, “Criminal Near Misses and Cyclists’ Perceived Risk,” is eleven minutes long but it will be well worth your time investment.
The second video, “Positive ID Not Required in Cyclist Video Evidence,” is only one minute long. It features one of our panelists, Alameda County Assistant District Attorney Paul Hora, who is in charge of the East County Hall of Justice in Dublin. DA Hora said not to confuse identity with what the driver looks like. He went on to say “you can use lots of evidence to figure out who it was” and to “treat every crime as if the guy was wearing a ski mask, I don’t need to know what his face looks like, I just need to know who he is” and “was he getting gas at the Shell station five minutes before, where there is a crystal clear video of him there, even though the rider didn’t see him when he was getting mowed over by the truck?”
We are concerned that CHP demonstrated twice in our criminal near miss compilation video, in two different counties, that they believe a positive driver identification by the cyclist is required. In the Castro Valley assault by the mini-van, they refused to charge the driver because the cyclist who was cycling away in fear for his life could not identify the driver in a photo-lineup. The van had blacked out windows and was assaulting the cyclist from behind. They also required a photo line-up in the Marin County assault from behind by the Dodge 3500 pickup pulling the massive cattle trailer at over 50 mph. There was a wealth of objective video evidence in both of these incidents that could have lead CHP to interview the owners of the vehicles to determine who was driving at that day and time, or as DA Hora stated: “you can use lots of evidence to figure out who it was.”
Our town halls provide respectful channels of communication that are key to highlighting and removing legal barriers to cycling safety. Cyclists stop cycling because of wide inconsistencies in law enforcement, and academic research states the number one reason cyclists stop riding are near misses.
Has law enforcement ever rejected one of your criminal near miss incident reports because you could not positively identify the driver in your video evidence? Have you ever been forced to identify the driver in a photo line-up even with video evidence?
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