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Ask Our Lawyer - August 2008

What We Have Here Is a Failure to Communicate

Q: Rod, my name is Dan Benning from S. Charleston, Ohio. Here is my question: John Westren and I were attending the Ohio Hog Rally recently. While exiting I-71 at exit 111, both of us immediately went down. At the time it was raining, so we were traveling around 10 MPH – a safe speed for the conditions. After going down, we discovered the exit was covered with fresh tar. We also learned of an asphalt company in the vicinity. We called the Ohio State Police to investigate and report our mishap. A newly minted trooper arrived and our impression was that he called his supervisor for further instructions. Unbelievably, the supervisor directed this young officer to cite both of us for losing control of our motorcycles. We both have CDL licenses so we take any citation seriously. My questions are: how do we fight these tickets and is the asphalt company responsible for the damage to our motorcycles?

A: A.B.A.T.E. Legal will help you fight these tickets. First, the officer is a witness to almost nothing. He came along after the fact. The only thing he can testify about is what you said and the conditions of the roadway that he observed. We have a copy of the ticket charging you with failure to maintain control of your motorcycle. This law punishes motorists for driving in such a way that causes loss of control, for example speeding, reckless driving and the like. Your only sin was that you were there. Nothing you did caused a loss of control – a defense to these charges. The loss of control was caused by the combination of fresh road tar and rain.

What we have here is a failure to communicate. I will call/meet with the prosecutor handling the case and the investigating officer. There is no evidence that the loss of control was caused by any driver/rider action and so the case should be dismissed. As you have a CDL license, you are doing the right thing to fight every infraction, however so slight.

As to the damage to your motorcycles, both of you have full coverage and as such we will advise your carrier of this loss. They should pay you directly for this damage. Of course, your insurance company will have a right of subrogation against the asphalt company responsible for the tar on the roadway. We have photos and samples of the road tar and can match that with the samples on the trucks observed to be leaking. This should be enough, together with the witnesses, to help your insurance company to recover for the amounts you are paid for the loss to your motorcycles. I will ask your insurance company to collect the deductible from the bad guys. We will also request that the Ohio Department of Transportation investigate this matter to determine if these types of problems have occurred before your incident and whether those responsible should be punished. As a fellow motorcyclist, I applaud your effort to get this corrected. It will give me a great deal of satisfaction to help you guys right this obvious wrong.

More People Are Killed/injured by Falling Coconuts That Are Done in by Sharks – Same goes for Falling Trees in Indiana and Michigan

Q: My name is Greg Wedge and I am a long time A.B.A.T.E. member. Here is my story and question: While traveling across U.S. 20 near a golf course in Northern Indiana, a large decayed tree fell in front of my motorcycle. I was going just under the posted speed limit, but the timing of the falling tree was such that I had no time to react and I was thrown over the trunk and through the branches. I was severely injured, and would have been killed if this large size tree had fallen on me. I have also heard of another incident like mine which occurred in Michigan. That rider was killed. Who is responsible for this and what should I do? By the way, someone had recently cut down a decayed tree next to the one that fell in my path.

A: All property owners have legal duties to the traveling public. This includes the state as a property owner as well as private property owners. We have photos of the decayed tree taken by the State Police. We are surveying the location of the tree to determine the owner of and whether the tree falls within the right of way. It may be that the golf course has assumed a legal duty to maintain that part of the property. We will determine who removed the decayed tree and whether they should have noticed the condition of the tree that injured you. The law requires that they maintain/remove trees that are a danger to the traveling public much like property owners are required to keep intersections cleared of obscuring vegetation. If the person/entity responsible for maintaining that tree should have known of the decayed condition, then they are liable to you for the injuries and losses caused by their negligence. A.B.A.T.E. Legal will help you with this matter.

P.S. The condition of trees next to roadways is an item that should be reported to us on ROADHAZARD.ORG. We will send a notice to the property owner. Most will respond and do the right thing and remove the offending tree – and perhaps save a life.

Can I make the Officer Pipe Down?

Q: I'm a member of A.B.A.T.E. who recently moved to Minnesota. I got a citation for loud pipes in St. Paul, MN, but I wasn't in the throttle, just slowing down to a stop light. Apparently, the officer didn't like the popping noise. The statue he cited me for violating states:

169.69 MUFFLER. Every motor vehicle shall at all times be equipped with a muffler in good working order which blends the exhaust noise into the overall vehicle noise and is in constant operation to prevent excessive or unusual noise, and no person shall use a muffler cutout, bypass, or similar device upon a motor vehicle on a street or highway. The exhaust system shall not emit or produce a sharp popping or crackling sound. Every motor vehicle shall at all times be equipped with such parts and equipment so arranged and kept in such state of repair as to prevent carbon monoxide gas from entering the interior of the vehicle. No person shall have for sale, sell or offer for sale or use on any motor vehicle any muffler that fails to comply with the specifications as required by the commissioner of public safety.

Is there anything that can fight this? Thanks for your help.

A: You didn’t mention whether you had made any modifications to the stock pipes, or what type of pipes you had on the bike. Without knowing that, there’s no way to know what sort of defense you would have to the charge. In general, since you didn’t indicate that the officer had a decibel meter when he cited you, it seems the officer could be very arbitrary in his findings. You may want to consider testing your bike at cruise throttle setting. You may also need to know what the state considers “excessive or unusual noise” or how the “sharp popping or crackling sound” differs from normal operation of a motorcycle engine. If it passes, then I think you have a good shot at beating them.

RoadHazard.org Feedback

We recently got some nice feedback from some of the contributors to the RoadHazard.org site. I thought I would pass these along:

Hi Rod, Thank you so much for your help! The next day (after the Road Hazard notice went out) the ‘town yahoo’ half filled the bad pothole! Today I noticed the pothole and the ones on that street were filled perfectly! I don't know if the town filled them or the county, but your team did a job superbly. . . .You have saved someone from a trip to the hospital! Thanks again.

Rod - I, too, have a happy conclusion to the pothole alert I sent to “Road Hazard.” All THREE of the monster craters have been filled, not perfectly but at least to the top. Thanks for all your help.

You keep letting us know when there are problems, and we’ll help keep the patching crews busy!

More on transporting firearms in Illinois

Q: In the July newsletter, you answered a question about transporting a handgun in a center console. I am not a lawyer but I am what most people would call a “firearms activist” here in Illinois. This is a subject where there is much incorrect information including in law enforcement. The law states a firearm may be transported legally if it is 1) unloaded and completely encased, OR 2) not immediately accessible, OR 3) broken down to be inoperable. (This is in the criminal code – the wildlife code requires the case to be specifically made to contain a firearm.) The big word is "OR," as long as the firearm meets any one of these criteria it is legal.

The case does not need to be locked or “lockable” as long as it is completely encased and there is no “distance” requirement. Transportation of ammunition is not addressed and is legal being transported inside the same case as long as the firearm is unloaded.

My two passions are Harleys and handguns and as you said “Whatever happened to the Second Amendment in Illinois.” I have been putting the majority of my time and energy into its restoration. One of the organizations I am a member of is the internet group www.illinoiscarry.com, dedicated to concealed carry in Illinois. You may also want to know that some states give lifetime CCW permits and many will issue nonresident permits. I personally have six; Pennsylvania, New Hampshire, Maine, Connecticut, Florida and Utah, which between them allow me to legally carry concealed in 33 states including Indiana, Tennessee, Kentucky and Missouri. I never had to leave Illinois to get any of these, all were applied for over the internet or by mail.

For anyone interested there is a web site for anyone interested in obtaining a CCW they may go to www.handgunlaw.us this will explain how to go about the nonresident process and provide all links needed for the process. Thanks for your time. Jim.

A: Thanks for all the good information, Jim. We get lost of questions about firearms, and I’m glad to be able to provide some clear information.

I have a small quibble with your argument – the provisions you cited are exceptions to the general statute, which means that in order to be safe, you have to comply with the exceptions. While you correctly cite the exceptions, I worry that investigating officers may have different interpretations of what those exceptions mean, such as, what constitutes “broken down,” or how close “immediately accessible” is. Also, as exemplified by the decision we talked about in the article last month, there is no guidance from the courts on what constitutes “a case, firearm carrying box, shipping box, or other container.” As you noted, the Wildlife Code has its own definition of what a “case” is: “a container specifically designed for the purpose of housing a gun or bow and arrow device which completely encloses such gun or bow and arrow device by being zipped, snapped, buckled, tied, or otherwise fastened with no portion of the gun or bow and arrow device exposed.” The confusion and multiple statutes make it difficult to be sure you’re in compliance with the law. I’ve included excerpts from the relevant Criminal Code statute for those of you following along at home.

(720 ILCS 5/24-1.6) Sec. 24-1.6. Aggravated unlawful use of a weapon.

(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person ... any pistol, revolver, stun gun or taser or other firearm; or

(2) Carries or possesses on or about his or her person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, ... any pistol, revolver, stun gun or taser or other firearm; and

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense; or

(B) the firearm possessed was uncased, unloaded and the ammunition for the weapon was immediately accessible at the time of the offense; or

(C) the person possessing the firearm has not been issued a currently valid Firearm Owner's Identification Card ...

(C) This Section does not apply to or affect the transportation or possession of weapons that:

(I) are broken down in a non-functioning state; or

(ii) are not immediately accessible; or

(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner's Identification Card.


Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services