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Ask Our Lawyer - May 2010

Railroad Crossings, Justice and a $20,000 Leg

Q: I lost my leg in a motorcycle crash a few years back. They had to take my leg off near the hip. As you know this makes any prosthesis fitting complicated. After much effort and assistance from the VA, I was provided a “perfect” artificial leg. Recently, I was riding a trike and was doing so when traveling over a C&N railroad crossing. This was the railroad crossing from hell. When I started across the tracks, I had no idea that it would cause such a traumatic jarring of my trike. When I say I crossed it slowly, I mean slowly. Even with my slow speed, the crossing so jarred the trike that it caused my leg to be disconnected, which then fell into the path of my trike and was run over and destroyed. Fortunately I was able to get another leg made, but that has taken several months and a lot of time and effort. My question is, can I hold the railroad responsible for my losses and cause them to fix this crossing?

A: Yes. Railroads are required to maintain crossings traversing their tracks to standards that are monitored by the state or governmental entities. Contact has been made with the claims department for the railroad. They now have the photos, which speak for themselves. The repairs should be accomplished shortly. If they are not, let us know and a more harsh letter will follow. (This is the worst crossing that ABATE LEGAL has ever seenRod) The railroad is responsible for loss of use of the leg, replacement, and the travails that you expended in getting the new leg operational. Gather your costs and submit them to the railroad with a copy to us. If they do not pay you let us know. Computing the value of the loss of the use of your leg is more complicated, so call us and we can help you with that computation. If you reach an agreement with the railroad, you will have to sign a release. Do not sign it until we review it for you.

Only Rider in a Thousand Miles with Original Stock Harley Pipes Gets Hassled by the Fuzz. It Won't Play in Peoria

Q: My name is Hyatt Huddleston. I own a Harley Sportster with the original, stock, factory-supplied mufflers. I bought the motorcycle new, so I know the history of this bike. I started my motorcycle about 2 weeks ago after installing the battery. It had been a long winter. Twenty minutes after my 7:15 start a Peoria County Deputy Sheriff was at my door asking if I started my motorcycle and why. I was told in the midst of the conversation that 10 a.m. would be a good time to start my motorcycle. I am highly agitated over this event and would appreciate any advice you can give. Thank you.

A: First, it was helmets, now it is noise, what is next? Hyatt, I have been around motorcycles all of my life. You are the first rider I have ever known that has the original stock mufflers on a Sporty – my compliments. Your motorcycle is a legal means of transportation. It meets all Federal and State sound requirements. You pay taxes for the right to operate freely the vehicle of your choice – which includes motorcycles. Most people go to work at 7 a.m. and not many of us get to crawl into work at 10 a.m. We have researched the ordinances in your neighborhood, and there is not one that remotely restricts the use and operation of your legal means of transportation. This same reasoning applies in Indiana and Ohio. The mean-spirited part of me wants to say that if they do not start their car before 10 a.m., then you would agree not to start your motorcycle before then either. Obviously, they will not agree to that proposition nor should you, but that tongue-in-cheek proposal underscores the point. They shall not be able to pick on motorcycles and attempt to restrict their use just because they can complain. I will write a letter to the finest at Peoria and gently prod them over to the good side of thinking. With that logic, what is next? Pick-up trucks? Cars with V-8's, or those without fuel injection? One thing is for sure, if Peoria has motorcycle cops, there would be none of them on duty at rush hour. (ABATE LEGAL has received other similar calls on this same issue from Columbus, Ohio – a potential problem for all of us – Rod)

Ticketing the Constitution

Digger Phelps, my constitutional scholar and a founding father of ABATE, asked me about traffic tickets and how they can possibly meet constitutional requirements of due process. His concerns are always researched and well taken. However, the law, in pursuit of simplicity in enforcing the rules of the road, has invented some fictions in many states – namely, that traffic tickets are not criminal violations. They are more like parking tickets, so the criminal protections afforded by state and federal constitutions do not apply. Tell that to the guy without his CDL or the guy who lost his driving privileges/and job, because of points. Digger, keep plowing through the law books, you provide good food for thought. There will be more on this to come.

Erosion of the 4 th Amendment—Profiling of bikers

Mike Meyers, the State Coordinator of A.B.A.T.E. OF ILLINOIS has asked us to review the legality of the “safety checks” that are occurring in Illinois, Ohio and Missouri. We all know these “safety checks” never occur. The cops just want to look at our paper work. We have advised Mike that the 4 th Amendment is crystal clear in what it provides, namely: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” What could be more simple? Let me give you an example of the problems we are having with these “safety checks”.

A while back, on a beautiful Saturday morning at the Fulton County Rodeo, cops decided to rain on our parade. They set up “safety check points” as a guise to inspect for riders valid plates, licenses, insurance cards, and motorcycle endorsements-“safety checks”. I do not believe I have ever seen a cop check the tread wear on a motorcycle tire during these checks. Have you ever passed a checkpoint looking to see if cars had valid insurance? I have not. Those that want to take care of us and the traveling public cite their concern for us as a basis for these “safety checks”. Has a lack of insurance, an expired license or lack of a MC endorsement ever been the cause of an accident? I cannot imagine. Why, after a long week of work, should these riders stand to be hassled while spending hard earned free time participating in a motorcycle event? Many of them decided to opt out of the event as the checkpoint lines started to back up and the hassle became apparent. This is not a reasonable search and seizure, so where is the 4 th Amendment when we need it?

While it may be understandable to have sobriety checkpoints on December 31 st when the probability of drunk drivers is extremely high, checking motorcyclists on a Saturday morning bike ride for standard documents is most certainly not. The state can check registration documents when the bike is registered each year. Insurance requirements can be checked when an accident occurs. MC endorsements can be checked with a legitimate traffic stop. The reasoning of the cops is transparent. Bikers are just an easy target for police to rack up some easy multiple tickets for their monthly quota, and somehow, they keep getting away with it. Their ruse for safety checks is out of line. What is next? Routine visits to the homes of CDL holders during dinner or Friday night during a favorite movie? Heavy handed profiling is the only apt description for what is happening in the Midwest. And if we keep letting this slide it will only be a matter of time until other ways to violate the 4 th are initiated. ABATE LEGAL REQUESTS ALL MEMBERS TO REPORT PROFILING IN THEIR AREA AND THE FACTS REGARDING THE PROFILING SO WE CAN MAKE BOOK ON THOSE THAT CHOOSE TO VIOLATE OUR 4 TH AMENDMENT RIGHTS. Let us do what we can to let them know we are watching and making book on these illegal searches.

Speeding Ticket Deferrals

Q: I am a motorcycle instructor. I recently was caught in a speed trap. I was west bound when a policeman pulled me over. I thought he was after another driver. There were just two of us on the road and we were doing the same speed, which was over the limit of 60. I'm not contesting the speed I was doing, but I had a reason, as the car kept too close to me no matter what lane I was in. I was attempting to distance myself from him, since it didn't matter which lane I was in or what speed I did.

I am wondering what I should do now: contest the ticket, pay the fine, or do the prosecutor’s deferral program. To take the prosecutor's deferral, I must pay a fee plus take a defensive driving course. Women working in the prosecutor’s office have told me that by paying the fee and taking the course the ticket will never be processed.

It seems that taking the course means the offense will be reported and points will be removed from my license, but if the ticket is never processed as the prosecutor’s office says, then no points will be added to my license, so it seems moot to me. There appears to be a conflict here. The other option is to pay the ticket and not take a defensive driving course. Of course I would be taking my chances with the insurance company as to rate increases. I am a 50-year-old female and until now have a pristine driving record. Thank you for any assistance or advice you can give me.

A: The deferral program is in your best interest. Just because the program is recognized or approved does not mean that your participation will be reported. If the prosecutor dismisses the ticket after completion of the course, the BMV will not assess any points to your license. Fighting the ticket may not be a practical course of action. Even if you have a good excuse for exceeding the speed limit, the court will most likely side with the cop, but if the judge is a motorcyclist he may understand your predicament and go your way. It boils down to how much time you have and how lucky do you feel. I say go for the deferral even though you have a defense.

Miracle Ride!

The annual Miracle Ride Benefitting Riley Hospital for Children is coming up, June 4-6 th. We are proud to say that ABATE LEGAL started this ride 17 years ago. Bob and Tom, Lucas Oil and many other sponsors make this event possible. You may donate and register online at http://www.miracleride.net/. Come out and help support us as we strive to keep Riley Hospital a healthy institution and the kids strong.

Ride Safe and Free,
Rod Taylor
ABATE Legal Services

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at rodtaylor@abatelegal.com. © 2010, A.B.A.T.E. Legal Services