Author Topic: Jim Swarzman trial  (Read 6957 times)

Jim Swarzman trial
« on: July 11, 2011, 07:40:40 PM »
The actual trial name is State of California v. Josph Fernandez. N Cty Court House Dept 22 3rd floor.
This visitor from WA state for a few days, age 45 , was returning from two bars in Encinitos to Carlsbad N on the 101 N of Leucadia Blvd, was traveling 50 MPH and struck Jim Swarzman, killing him instantly.

Jim, a randonneur, was riding with his fiance, Nicole Honda, to complete their qualfication test for later competition for their group. They started at Temecula and were making the the return trip going to Borrego Springs, Boulevard, Chula Vista and back to Temecula. Due to the extreme distance traveled, it was not till early morning, 1:00 AM, they were struck by Mr Fernandez.

Their preparation for this trip was impeccable. They had reflective tape on almost all rear facing surfaces. Each of the 3 riders had high powered LED headlights as well as red flashing rear lights not only on the bikes, but on their helmets.

I attended the first day of trial. I urge all available NCCC members, if possible to attend the July 12 session. If not only for support for our cycle fratenity but to see the bias of those that show no need for cyclists  to control our share of the road.
« Last Edit: July 11, 2011, 10:22:01 PM by karl-admin »

Re: Jim Swarzman trial
« Reply #1 on: July 12, 2011, 01:19:14 PM »
John, its wonderful that you are attending the trial and you gave an excellent write up.  As depressing as the trial must be, its important to show unity as a cycling community.  I wish I could join you.

Re: Jim Swarzman trial
« Reply #2 on: July 12, 2011, 04:02:06 PM »
Trial by Judge concluded Tues, July 12, 3:00 PM.. The judge found the defendant guilty of failure to stop at the scene of an accident. He also found that Jim Swarzman contributed to his death by not heeding the statute that cyclists must ride to the right hand side of q lqne. He also pronounced that the narrow strip of roadway outside of the white line is not a designated bike lane.
Sentencing of Joseph Ferandez is set for Sept 12, 1:30 PM in the same court room.

This finding, that Jim was in violation of lane usage, belies the LAB teaching "Claim the Lane".

John Wellwood

Re: Jim Swarzman trial
« Reply #3 on: July 13, 2011, 10:27:43 PM »
This is so wrong.  The statue does in no way say that a cyclist must ride to the right hand side of the lane.    The actual statute says that if the lane is wide enough for passing they should ride as far right as is safe.  If it is not wide enough for safe passing then they should take the lane. 

In this location there is no bike lane so the cyclist needs to take the lane as the SLOW lane is not wide enough for safe passing and a car can pass in the left lane.

Here is the statute. (this just makes me sick)  the police and the judges don't know the law.   When is this going to be fixed so we stop being killed.

http://northcountycycleclub.com/smf/index.php?topic=628.0

Re: Jim Swarzman trial
« Reply #4 on: July 14, 2011, 06:39:31 AM »
" Is he interpreting it "wrong"? Discriminatory laws are designed to get cyclists out of the way, placing their safety below the convenience of overtaking drivers. So is it surprising that a judge would interpret the law in a way that is disadvantageous to the minority group subject to the discrimination?

This also shows why 3-foot passing laws are a worse then useless gesture, when the police and courts can always use the FTR law to blame the cyclist when a car-bike collision occurs. Please be sick that the FTR law, CVC 21202 is on the books. This law is literally killing us!

Also note that when I say that a 3-foot law is worse than useless, I mean that the 3-foot passing law is an admission that cyclists must be at the edge, and therefore is a lame attempt to beg for space instead of eliminating the FTR law, so our use of lane space would not be questioned. With no FTR law, there would never be a question of adding something as silly as a 3-foot passing law.

Do notice that motorcyclists have full lane protection in most US states, so they are not dumb enough to ask for a 3-foot law, since, like any other driver, they expect and are entitled to use/control full lanes. Now, if a bicycle is a smaller. lighter and therefore less robust agasint crashes method of transport than a motorcycle, and a motorcycle driver is allowed full use of a lane, why ever would a bicyclist want any less protection than the full lane granted motorcyclists?

As bicycling advocates, we should be working to repeal discriminatory laws that jeopardize our safety for the benefit of motorists, and are routinely used agasint us when motorists collide with us. So long as this discrimination persists, we will always have "open season" for motorists to hit cyclists on public roads. If you want driver rights, then eliminate the laws that take these rights away (CVC 21202 and CVC 21208), instead of cheerleading for laws, like the 3-foot law that won't change the discriminationatory enforcement, fault assignment and sentencing practices under which we now endure in California.
2 hours ago ? Like"  -Dan Gutierrez
« Last Edit: July 14, 2011, 01:22:18 PM by Judy »

Re: Jim Swarzman trial
« Reply #5 on: July 14, 2011, 07:25:30 PM »
I'm not sure that I agree that the current CVC 21202 is as bad as Dan Gutierrez says. The real problem is that cyclists don't know it, motorists don't know it, and evidently police officers, CHP, and judges don't know it. Worse yet, it sounds like the prosecutor in this case couldn't even speak to the right which Jim Swarzman and fellow riders had to take the lane. We all know this stretch of road only too well - crashes by Bill Fagan a couple years ago and John Hopkins just last week. There is no shoulder or bike lane, the RH lane is too narrow to hold both a car and bike, and the LH northbound lane was simply where the car should have been at 1am. I think the so called FTR law (keep Far to Right), together with allowing 3 ft clearance, should be good enough, provided everyone knows what the law says, in particular the FTR exceptions. I really disagree that the "three foot law is an admission that the cyclist must be at the edge." The correct interpretation of CVC 21202 (aka FTR) would have guaranteed Jim Swarzman the right to be where he was, and the 3 foot law would have really forced the driver to be in the LH northbound lane as his only option.
« Last Edit: July 14, 2011, 07:32:11 PM by karl-admin »

Re: Jim Swarzman trial
« Reply #6 on: July 14, 2011, 11:01:15 PM »
Well Karl... I think it is that bad. Kirsty Marritt just got a citation on Coast Highway going south.. it was for CVC section 21202A (not riding far enough to the right).. So, even though she is taking the lane and riding in a narrow lane and riding so she is safe and not in the door zone of parked cars.. she was given a ticket.  And now we will all be given tickets for trying to stay alive on coast highway.

" there is a door zone to contend with, it's probably an improper citation, however, police do this all the time and traffic court judges many times also express this prejudice, and why not? They've got a law that they can use any time they want to "stick it to you" for being a bicyclist. It's really very sad that we live under this type of Jim Crow harassment."

This is a very subjectively written law. It says we should stay as far right as is safe.  Who should judge who is safe?  We should.   I know if I try to ride to the right cars think there is enough room in the lane to pass and have come close to hitting me.  If I take the lane they see me from a distance and move over to the passing lane without having to slow down.  But, any police officer or judge can subjectively say who should be where on the road.

Re: Jim Swarzman trial
« Reply #7 on: July 15, 2011, 11:22:52 AM »
Just thinking about the coast highway stretch through Leucadia makes me very angry.

Re: Jim Swarzman trial
« Reply #8 on: July 15, 2011, 12:03:02 PM »
mad as hell and not going to take it anymore. they better not try to give me a ticket there.. I would probably get arrested!

karlos

  • Administrator
Re: Jim Swarzman trial
« Reply #9 on: July 15, 2011, 12:17:17 PM »
Judy - you and I are totally in phase regarding FTR subjectivity. And you are spot-on in that WE are the determiners of what is safe. A judge, months after the fact, or an officer traveling in an insulated car at the scene, has trouble making this call. What is needed is to somehow take the subjectivity out of it. For instance, the sharrows in Oceanside (infrequent, but prevalent on Pacific) show exactly where the cyclist is to be. It would be great if CVC 21202 had some specific guidelines, such as 4 ft to the left of the shoulder stripe when no bike lane exists, or something like that. The good thing about SB 910 is that there are specific numbers, such as 3 ft (still tight), although it's probably hard to really prove. I still fell the main thing is education, both drivers and cyclists, (police, lawyers, and judges). I think that's where states like Oregon (specifically, cities like Portland where > 8% commuters are cyclists [in the rain!]) have it over CA. Thanks for arranging a meeting with Richard Duquette. A swell idea.

Re: Jim Swarzman trial
« Reply #10 on: July 15, 2011, 07:26:42 PM »
With regard to the sharrows.  I think they are mostly to show the cars that cyclists are allowed on the road. Speaking to the traffic engineers they are actually not that safe where placed because they are in the door zone.  I usually ride in the center of the lane or at least all the way to the left edge of the sharrows to stay out of the door zone.

There seems to also be a problem with things done with good intentions not done exactly right so we need to be vigilant for our own safety and not assume that markings in the road are correct.

it is not correct to approach a  light in the bike lane if there is not a right turn lane to the right of the bike lane.  A bike should be to the left of the bike lane to allow cars to turn right and to avoid cars turning into us from our left.  We should either be aligned with other cars going straight or in front of the cars.  Not that I always do this but it is correct to move into the traffic lane at every corner and driveway unless the bike lane is correctly placed to the left of the right turn lane.

Supposedly there are plans to redesign that section of Leukadia to make it one lane plus a bike lane and have traffic circles instead of traffic lights and stop signs.  They are also planning back in parking. But, the fruition of that plan is a long way off.  Encinitas is the only city that did not take advantage of Rails to trails matching funds to make a designated bike path as they have done in every other town along the coast from Del Mar to Oceanside.

Re: Jim Swarzman trial
« Reply #11 on: November 04, 2011, 02:22:29 AM »
I decided to give a hand and sent a post into social bookmarks. I hope the popularity will rise in.
I'm on Twitter and my essay