Here is the transcript to the Steven Selz trial which took place in February,
2000. In the trial he was convicted
and fined $100 for "impeding traffic". The transcript is
courtesy of the Ohio Bicycle Federation Legal Defense Fund,
which paid for its preparation.
1 MONTGOMERY COUNTY
2 DISTRICT COURT ONE
3 NEW LEBANON, OHIO
4 * * *
5 CITY OF TROTWOOD,
6 Plaintiff,
7 vs. CASE NO. 99-TRD-4409
8 STEVEN SELZ,
9 Defendant.
10 * * *
11 BE IT REMEMBERED, that upon the
12 hearing of the above-entitled matter held in the
13 Montgomery County, District Court Area One before
14 the Honorable Connie Price, Judge presiding.
15 * * *
16
17
18
19
20
21
22
23
24
25
2
1 EXAMINATIONS CONDUCTED Page
2 MARY VANCE
3 BY MR. FUCHSMAN:.............................. 5
4 BY MR. MAGAS:................................ 13
5 BY MR. FUCHSMAN:............................. 17
6 BY MR. MAGAS:................................ 18
7 STEVEN O. SELZ
8 BY MR. MAGAS:................................ 20
9 BY MR. FUCHSMAN:............................. 27
10 ALLEN BYRAM
11 BY MR. MAGAS:................................ 29
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 APPEARANCES:
2 On behalf of the Plaintiff:
3 Izenson, Fuchsman & Brinkman
4 By: David Fuchsman
Attorney at Law
5 2000 Liberty Tower
120 West Second Street
6 Dayton, Ohio 45402
7 On behalf of the Defendant:
8 Bison Jacobson
9 By: Steven M. Magas
Attorney at Law
10 3536 Edwards Road
Suite 201
11 Cincinnati, Ohio 45202
* * *
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 (Thereupon, the following
2 proceedings were transcribed from a videotape.)
3 MR. FUCHSMAN: Your Honor, this is
4 Case Number 99-TRD-4409, City of Trotwood versus
5 Steven Selz. This is somewhat of an unusual
6 case. This is allegations that Mr. Selz was on a
7 bicycle and because of slow speed is impeding
8 traffic, and that's in violation of Section
9 333.04 of the Trotwood ordinances, and Mr. Selz
10 is here present in court represented by his
11 counsel, Mr. Steve Magas, and at this time the
12 city is ready to proceed.
13 THE COURT: Mr. Magas, are you ready
14 to proceed?
15 MR. MAGAS: We are, yes, your Honor.
16 MR. FUCHSMAN: We call Officer Vance
17 to the stand.
18 MARY VANCE
19 of lawful age, Witness herein, having been first
20 duly cautioned and sworn, was examined and said
21 as follows:
22 THE BAILIFF: Could you state your
23 name and occupation for the record?
24 THE WITNESS: Mary Vance. The last
25 name is spelled V as in Victor, A N C E, and I'm
5
1 a police officer for Trotwood.
2 MR. FUCHSMAN: Your Honor, just so
3 the Court is aware, the ticket indicates warning
4 prior to this date, second offense. We're not
5 alleging this is a second offense within twelve
6 months making it a fourth degree. This is a
7 minor misdemeanor.
8 DIRECT EXAMINATION
9 BY MR. FUCHSMAN:
10 Q. Officer, how long have you been a
11 police officer?
12 A. Ten years.
13 Q. And of that ten years, how much of
14 that has been with the City of Trotwood or
15 Madison Township?
16 A. Ten years.
17 Q. Turning your attention to July 16th,
18 1999 at approximately 7:20 p.m., were you
19 employed as a police officer at that time?
20 A. Yes, sir.
21 Q. At that time were you in a marked
22 cruiser and uniform as prescribed by your chief
23 of police?
24 A. Yes, sir.
25 Q. Within the City of Trotwood,
6
1 Montgomery County, Ohio on that date and time did
2 you have an opportunity to come in contact with a
3 person you later came to know as Steven Selz?
4 A. Yes, sir.
5 Q. Do you see Mr. Selz here in court
6 today?
7 A. Yes.
8 Q. And would you please identify him?
9 A. He's at the defense table.
10 Q. Wearing what, ma'am?
11 A. A blue sweatshirt.
12 MR. FUCHSMAN: Indicating the
13 defendant, your Honor, for purposes of the
14 record.
15 THE COURT: Let the record so
16 reflect.
17 MR. FUCHSMAN: Thank you.
18 BY MR. FUCHSMAN:
19 Q. Officer Vance, then would you please
20 describe to the Court the circumstances that gave
21 rise to your contact with Mr. Selz?
22 A. I was on routine patrol on Salem
23 Avenue and I noticed vehicles traveling in the
24 southbound lane in the forty-eight hundred block
25 were slowing to a stop, and as I looked up Salem,
7
1 Mr. Selz was driving in the middle of the traffic
2 lane causing cars to stop and have to go over to
3 the other lane --
4 Q. Let's go back --
5 A. -- to get around him.
6 Q. First of all, describe for the Court
7 what sort of area is this of Salem Avenue at the
8 forty-eight hundred block. What's there?
9 A. Okay. It's a business area. Mainly
10 business.
11 Q. Okay.
12 A. We were in front of Maria Joseph
13 Care Center.
14 Q. All right. And when you say --
15 let's describe -- what sort of traffic, if you
16 had to describe it as light, moderate, or
17 heavy --
18 MR. FUCHSMAN: First of all, let me
19 first make a motion to separate witnesses. I
20 don't know if this is a witness.
21 MR. MAGAS: Yes.
22 MR. FUCHSMAN: Okay. I'll make a
23 motion for separation of witnesses.
24 THE COURT: Certainly.
25 BY MR. FUCHSMAN:
8
1 Q. Okay. I'm sorry. I asked you to
2 describe the traffic at the time, if it was
3 light, moderate, or heavy?
4 A. It was heavy.
5 Q. And what sort of vehicle was
6 Mr. Selz operating at the time of this alleged
7 violation?
8 A. A bicycle.
9 Q. And can you describe the bicycle for
10 the Court?
11 A. The only thing I can remember about
12 it, it was purple, appeared to be a twenty-six
13 inch in height, you know, tire.
14 Q. Now, what is the speed limit at this
15 particular area?
16 A. Forty-five miles per hour.
17 Q. And is that speed limit posted in
18 such a fashion as to be able to be seen by a
19 reasonable ordinary person under the
20 circumstances that existed at the time of this
21 alleged violation?
22 A. Yes, sir.
23 Q. Approximately how many vehicles are
24 you alleging was forced to either stop or slow
25 down as a result of Mr. Selz's operation of his
9
1 bicycle?
2 A. Gosh. I'd say six to eight at count
3 until I could get up to him.
4 Q. All right. And did you say that
5 some of those vehicles had to actually come to a
6 stop?
7 A. Yes.
8 Q. And it is your allegation that they
9 came to a stop as a result of Mr. Selz's slow
10 speed or for some other reason?
11 A. For his slow speed.
12 Q. And where was he operating his
13 bicycle?
14 A. In the middle of the lane,
15 southbound lane.
16 Q. All right. Were you able to observe
17 his bicycle being operated?
18 A. Yes.
19 Q. Do you have an estimate based upon
20 your experience as to how fast Mr. Selz was
21 traveling at the time of this alleged violation?
22 MR. MAGAS: Objection. There's been
23 no testimony that she has any experience
24 estimating the speed of a bicycle.
25 THE COURT: Sustained.
10
1 BY MR. FUCHSMAN:
2 Q. Officer, based upon your experience
3 as a police officer of ten years, would there be
4 any difference in your mind estimating the speed
5 of a bicycle as opposed to estimating the speed
6 of a motor vehicle?
7 A. No.
8 Q. Have you estimated in Court speeds
9 of motor vehicles?
10 A. Yes, sir.
11 Q. Based upon your experience and your
12 observation, do you have an opinion as to how
13 fast Mr. Selz's bicycle was traveling at the time
14 of this alleged violation?
15 A. No more than fifteen miles per hour.
16 Q. Officer, in the grand scheme of
17 things, this is not a -- it's a minor
18 misdemeanor. Why not a warning? Why did you
19 issue a ticket in this case?
20 MR. MAGAS: Objection. Relevance.
21 (Unintelligible.)
22 BY MR. FUCHSMAN:
23 Q. Did you have an opinion based upon
24 what you observed out there as to whether or not
25 Mr. Selz was creating a hazard to either other
11
1 traffic or to himself at the time of the alleged
2 violation?
3 MR. MAGAS: Objection. That's not
4 an issue in the case, number one. I don't know
5 that she's been qualified as an expert to hazard
6 a guess as to an answer to that question.
7 MR. FUCHSMAN: Your Honor, I don't
8 think you have to be an expert to render an
9 opinion as to whether or not his bicycle and the
10 way it was being operated was presenting a risk
11 of physical harm to either Mr. Selz or to other
12 traffic and I think it would go to her
13 observations as to the slow speed.
14 MR. MAGAS: It's not part of the
15 alleged violation, I mean, that's the point I'm
16 getting at. The question is not whether he was
17 going to hurt himself if he didn't get off the
18 road. The question is whether he was traveling
19 at a reduced speed or not and whether he meets
20 the other definitions of the statute, so it's not
21 relevant.
22 THE COURT: Overruled.
23 BY MR. FUCHSMAN:
24 Q. You can answer the question. Did
25 you feel based upon your observations of the
12
1 traffic that was out there and the speed that
2 you've estimated Mr. Selz to be going, did you
3 form an opinion as to whether or not in your mind
4 he was causing a risk of harm to himself and/or
5 other traffic?
6 A. Yes.
7 Q. And your -- what is that opinion?
8 A. I felt that it could cause a traffic
9 accident where it would injure him or someone in
10 a motor vehicle because we've even had accidents
11 because of that, bicycles causing traffic
12 accidents in that area. We do have that on
13 record.
14 Q. All right.
15 MR. FUCHSMAN: Your Honor, I need
16 just one minute.
17 (Pause in proceedings.)
18 BY MR. FUCHSMAN:
19 Q. Were there any laws that would have
20 forced the defendant to ride at this estimated
21 speed of fifteen miles an hour or less in the
22 middle of that lane?
23 A. That would have forced him to do
24 that? Forced him to --
25 MR. MAGAS: Objection.
13
1 THE WITNESS: I don't understand.
2 MR. MAGAS: Maybe I don't quite
3 understand the relevance of the question. If
4 he's asking the officer if there were laws that
5 would have forced the defendant to ride, I don't
6 see the relevance. Number two, I don't know that
7 she's competent to answer that question. That's
8 kind of an issue for the Court.
9 THE COURT: You can ask her if she
10 were aware of any laws. I'll allow that.
11 MR. FUCHSMAN: I'll withdraw the
12 question. I have no further questions. Thank
13 you.
14 CROSS-EXAMINATION
15 BY MR. MAGAS:
16 Q. Officer Vance, my name is Steve
17 Magas. I'm Mr. Selz's attorney. Was there any
18 minimum speed on this state route at that point?
19 A. It's forty-five.
20 Q. That's the maximum speed.
21 A. That's what's posted.
22 Q. So if he was going -- Mr. Selz was
23 exceeding forty-five miles an hour, you would
24 have ticketed him for speeding, correct? You
25 could have?
14
1 A. Yes.
2 Q. But there's no minimum speed stated
3 on that route, is there?
4 A. There's not signs posting that, no.
5 Q. Do you ride a bike?
6 A. Do I ride a bike?
7 MR. FUCHSMAN: Objection.
8 MR. MAGAS: I'm trying to establish
9 her qualifications for estimating speed.
10 MR. FUCHSMAN: Withdrawn.
11 THE WITNESS: Yeah, I've ridden a
12 bike.
13 BY MR. MAGAS:
14 Q. Have you ever ridden a bike with a
15 speedometer to know how fast it is to go fifteen
16 miles an hour?
17 A. No, but I know enough to ride to the
18 side of the road.
19 Q. Have you ever ridden a bike to know
20 what the difference is between, say, fifteen and
21 eighteen miles an hour or the effort that it
22 takes to --
23 A. No.
24 Q. Do you know what the laws are with
25 regard to riding bicycles in the State of Ohio?
15
1 A. You have X amount of feet you're
2 allowed from the curb, but he was clearly in the
3 middle of the roadway.
4 Q. So it's your testimony that he was
5 riding right down the middle of the road where
6 the typical oil would leak out of a car would be,
7 correct?
8 A. In the middle of the roadway and
9 sometimes veered over to the traffic lane, the
10 marked lanes there.
11 Q. On the right or the left?
12 A. On his left.
13 Q. You're saying he was actually
14 veering toward the middle of this lane?
15 A. At times, but mainly kept in the
16 middle of the roadway.
17 Q. There's five lanes of travel on
18 Salem at that point, isn't there?
19 A. There's --
20 Q. Two in each direction and a
21 universal turn lane?
22 A. And a divider lane, yes.
23 Q. Now, is it your testimony that
24 Mr. Selz was riding at a slower speed than he
25 could have otherwise ridden?
16
1 A. A slower speed than he -- no.
2 Q. He was riding at a reasonably normal
3 bicycling speed, wasn't he?
4 A. Yes, sir.
5 Q. And you had some trouble with a kid
6 on a bicycle who had gotten hit in that area;
7 isn't that true?
8 A. Yes.
9 Q. The kid had come out from the side
10 of the road and pulled out in front of a car and
11 had gotten hit?
12 A. He had a habit of riding on Salem
13 Avenue.
14 Q. You didn't have any radar or
15 anything, I take it, to clock Mr. Selz's speed,
16 did you?
17 A. I had radar, it's in my car, but I
18 was not on a traffic post.
19 Q. And no accident was, in fact, caused
20 as a result of this, was there?
21 A. No, not since I stopped him.
22 Q. Now, is it your testimony that an
23 accident was imminent had you not stopped him?
24 Is that what you're saying?
25 A. I believe so.
17
1 Q. Do you know anything about
2 Mr. Selz's bicycling history or qualifications or
3 knowledge?
4 A. Well, he had told me when I stopped
5 him about a month earlier that he had been riding
6 his bicycle for quite a long time, but I didn't
7 know the exact amount of, you know, time of years
8 that he had.
9 Q. There's a lot of bicycling traffic
10 on 49, is that fair?
11 A. No.
12 Q. Not a lot?
13 A. No.
14 MR. MAGAS: That's all the questions
15 I have.
16 REDIRECT EXAMINATION
17 BY MR. FUCHSMAN:
18 Q. I'm sorry, Officer, you were asked
19 about something and you said about a month prior
20 you had interaction with Mr. Selz?
21 A. Yes, sir.
22 Q. What was that about?
23 MR. MAGAS: Objection. Relevance.
24 THE COURT: I'll allow it.
25 THE WITNESS: I had -- was on
18
1 routine patrol and it was after work traffic
2 approximately a month or maybe a little bit
3 longer. It was on Salem Avenue again. He was
4 traveling southbound but this was closer to Wolf
5 Road, and he had traveled across two lanes, the
6 divider lane and then the northbound traffic, and
7 it was like he was oblivious to the other traffic
8 traveling so I pulled him over into the Big
9 Muffler lot at Salem and Wolf and tried to
10 explain to him why it was so dangerous and to
11 please avoid either driving on Salem Avenue or
12 ride to the side of the road.
13 BY MR. FUCHSMAN:
14 Q. Did you give him a ticket that time?
15 A. No. I gave him a warning.
16 MR. FUCHSMAN: Okay. I have nothing
17 further. Thank you.
18 RECROSS-EXAMINATION
19 BY MR. MAGAS:
20 Q. And, Officer, that incident was
21 caused because Mr. Selz wanted to turn left and
22 he was moving into the left-hand turn lane; isn't
23 that correct?
24 A. He was not yielding to the other
25 traffic though.
19
1 Q. But he was moving into -- regardless
2 of what your recollection of the facts is, he was
3 moving into the left-hand turn lane, correct?
4 A. Yes.
5 Q. So he was riding in the right lane,
6 he wanted to turn left, and then he had to go
7 across those lanes to get into the left-hand turn
8 lane; isn't that correct?
9 A. Yes, but there was heavy traffic and
10 they were all traveling southbound.
11 Q. I take it your opinion is that State
12 Route 49 is simply a dangerous place for bicycles
13 to be?
14 A. Honestly, yes.
15 MR. MAGAS: That's all I have.
16 Thank you.
17 MR. FUCHSMAN: I have no further
18 questions. Thank you. The City would rest.
19 MR. MAGAS: Call Mr. Selz to the
20 stand.
21 STEVEN O. SELZ
22 of lawful age, Defendant herein, having been
23 first duly cautioned and sworn, was examined and
24 said as follows:
25 THE BAILIFF: Would you state your
20
1 name for the record?
2 THE WITNESS: Steven O. Selz.
3 THE BAILIFF: Thank you, sir.
4 DIRECT EXAMINATION
5 BY MR. MAGAS:
6 Q. Thank you. Mr. Selz, do you own a
7 car?
8 A. No.
9 Q. How do you get from place to place?
10 A. Bike or public transportation.
11 Q. How long have you been doing that?
12 A. Twenty-eight years.
13 Q. About how many miles a year do you
14 put on your bicycle?
15 A. Anywhere from thirty-five hundred to
16 fifty-five hundred miles.
17 Q. And how much of that would you say
18 is on a road as opposed to a bike path or a
19 training path or something like that?
20 A. Ninety-five percent of that mileage.
21 Q. Do you commute by bicycle?
22 A. Yes, I do.
23 Q. Do you feel comfortable riding in
24 traffic regardless of whether it's light,
25 moderate, or heavy?
21
1 A. Yes, I do.
2 MR. FUCHSMAN: Objection as to the
3 relevance whether or not he feels comfortable.
4 (Thereupon, the videotape was
5 changed.)
6 BY MR. MAGAS:
7 Q. -- speeds were you maintaining as
8 you proceeded southbound on Salem Avenue?
9 A. I had reached about eighteen miles.
10 MR. FUCHSMAN: Objection unless we
11 can put it exactly at what point on Salem Avenue.
12 BY MR. MAGAS:
13 Q. At or near the time that you were
14 given this citation by the officer, about what
15 speeds were you maintaining?
16 A. At the point of I noticed the sirens
17 and the lights behind me, I was doing roughly
18 eighteen miles an hour.
19 Q. And what sort of a speed is that for
20 a cyclist?
21 MR. FUCHSMAN: Objection.
22 Irrelevant as to what kind of speed that is for a
23 cyclist.
24 MR. MAGAS: Absolutely relevant
25 based on what the statute says.
22
1 THE COURT: Overruled.
2 THE WITNESS: That's around an
3 average pace for a cyclist that's into a fitness
4 training.
5 BY MR. MAGAS:
6 Q. Does one or two miles an hour make a
7 difference to a cyclist? I mean, is there a big
8 difference between eighteen, say, and twenty-two
9 miles an hour?
10 A. Yes, quite a bit more energy is
11 expended going from eighteen to twenty-one mile
12 an hour due to wind resistance.
13 Q. Were you in any way riding at a
14 reduced speed or a slow speed for a cyclist at
15 the time of this ticket?
16 MR. FUCHSMAN: Objection. Again, I
17 don't think the statute talks in terms of what is
18 a slow speed or reduced speed for a cyclist. The
19 question is whether or not it was a slow speed
20 for a vehicle which is defined in the code,
21 including a bicycle --
22 MR. MAGAS: That's exactly right.
23 MR. FUCHSMAN: -- in impeded or
24 blocked traffic.
25 THE COURT: Sustained.
23
1 MR. MAGAS: If I can be heard, your
2 Honor. The statute says except when stopping or
3 a reduced speed is necessary for safe operation
4 or to comply with the law. The question is, what
5 is the speed that these vehicles are to go at?
6 There is no minimum speed. He's
7 riding at a reasonable bicycling speed which
8 should not be interpreted as impeding traffic
9 because he's going as fast as he can go.
10 And as the Court will hear later on,
11 he has a right to be where he is. There's no ban
12 on bicycles at that point so the statute says
13 except when stopping or reduced speed, that's
14 their words, is necessary for safe operation.
15 So if you're not riding at a reduced
16 speed, then you're apparently complying with the
17 law under the statute, that's why I'm trying to
18 lay the groundwork for that argument, what is
19 common speed, what's a slow speed for a bicycle
20 because he's part of the fabric of traffic as
21 well as that is what traffic is defined as in the
22 statute as well. It's not cars and trucks and
23 buses. It's all the stuff that's legally allowed
24 to be on the road, including bicycles.
25 THE COURT: Let me see a copy of the
24
1 statute -- the ordinance. I guess it's an
2 ordinance.
3 MR. MAGAS: Yes.
4 MR. FUCHSMAN: This is the ordinance
5 and then this is where it says it applies to
6 bicycles.
7 MR. MAGAS: I also filed a brief on
8 some of this, your Honor, in case -- I don't know
9 if you've got a copy of it or not.
10 MR. FUCHSMAN: I don't have a copy
11 of it.
12 MR. MAGAS: The question was whether
13 he was traveling at a reduced speed at the
14 time -- at or near the time he was cited. The
15 reason being, the statute says no person shall
16 basically impede the normal reasonable flow of
17 traffic except when stopping or reduced speed is
18 necessary for safe operation.
19 My point being, he's going as fast
20 as bikes go in traffic. He can't be ticketed for
21 not being able to go forty-five miles an hour.
22 It's not a -- you can't ban somebody who has a
23 right to use the road by saying you're physically
24 incapable of going forty-five miles an hour,
25 therefore, you're not allowed to ride here, and
25
1 that's why I'm here in the first place.
2 THE COURT: Without going --
3 MR. MAGAS: Right.
4 THE COURT: -- with the continuous
5 speaking objection or answer to that objection,
6 what was your question?
7 MR. MAGAS: My question was, was he
8 riding at a reduced speed.
9 THE COURT: All right. That one I
10 will allow.
11 THE WITNESS: No.
12 BY MR. MAGAS:
13 Q. All right. Were you riding as fast
14 as you normally rode your bicycle?
15 A. At that time in my training, yes,
16 that's as fast as I could go.
17 Q. To the best of your knowledge, was
18 traffic backed up behind you at any time?
19 A. I was the first vehicle to the light
20 at the intersection of Denlinger and Salem, which
21 is basically a hundred yards north of where I was
22 pulled over. Traffic pulled behind me at the
23 stoplight and had to go around me as I crested
24 the hill.
25 Q. So you were going up the hill after
26
1 the traffic light?
2 A. Yes.
3 Q. And then as you crested the hill --
4 as you're going up the hill, were you able to
5 go -- were you going slower or faster than you
6 normally went?
7 A. That was as fast as I could go at
8 that point.
9 Q. And then you crested the hill and
10 picked up speed?
11 A. Yes.
12 Q. Were you ever riding in the middle
13 of the road, the middle of the lane?
14 A. No.
15 Q. Do you ever ride in the middle of
16 the lane?
17 A. Only to change lanes for a left-hand
18 turn.
19 Q. Do you ever ride forty-five miles an
20 hour?
21 A. On one occasion with a very large
22 downhill.
23 Q. Are you capable physically of
24 hitting a speed of forty-five miles an hour on a
25 normal flat road?
27
1 A. I don't think so, no.
2 MR. MAGAS: That's all the questions
3 I have.
4 THE COURT: Cross, Mr. Fuchsman?
5 CROSS-EXAMINATION
6 BY MR. FUCHSMAN:
7 Q. When you were going the eighteen
8 miles an hour, are you testifying that's when you
9 were going up the hill or down the hill or flat?
10 A. That was just on the downside of the
11 hill.
12 Q. So can I assume when you're going up
13 the hill, you were probably going even slower
14 than the eighteen miles an hour?
15 A. Yes.
16 Q. And what would you estimate your
17 speed then when you were at your highest speed
18 but going up the hill?
19 A. About fourteen. Fourteen miles an
20 hour.
21 Q. And are you -- are you disagreeing
22 with the officer's observation that there was
23 traffic that was now behind you coming to a stop
24 and slowing down as a result of your car -- as a
25 result of your bicycle?
28
1 A. As far as stopping, yes.
2 Q. But you're not denying that there
3 was traffic behind you that was having to slow
4 down for you?
5 A. Not at all.
6 Q. Okay. And you would agree with me
7 that that traffic would have to go from
8 forty-five miles an hour down to, by your own
9 testimony, something less than fourteen miles an
10 hour, correct?
11 A. Well, at that point they probably
12 would not have to slow down. Like I said, we
13 just left from a traffic light so they were
14 relatively going the same speed as I was.
15 Q. But at some point the cars are going
16 to be able to proceed in a more normal speed for
17 that particular area and your bicycle prevented
18 that from happening, you don't disagree with
19 that, do you?
20 A. If they can't make a lane change,
21 yes, they would have to slow down and not run
22 over me.
23 MR. FUCHSMAN: I have nothing
24 further.
25 MR. MAGAS: Nothing further. I call
29
1 Allen Byram to the stand.
2 ALLEN BYRAM
3 of lawful age, Witness herein, having been first
4 duly cautioned and sworn, was examined and said
5 as follows:
6 THE BAILIFF: Could you state your
7 name for the record?
8 THE WITNESS: Allen Byram.
9 THE BAILIFF: Thank you, sir.
10 DIRECT EXAMINATION
11 BY MR. MAGAS:
12 Q. Mr. Byram, what do you do for a
13 living?
14 A. I have an exporting company that
15 sells sporting goods, primarily bicycle
16 components, accessories and bicycle -- bicycles.
17 Q. Are you a bicycle operator yourself?
18 A. Definitely.
19 Q. How long have you been doing that?
20 MR. FUCHSMAN: Can I have a --
21 THE WITNESS: Seriously for about
22 twenty-five years.
23 MR. FUCHSMAN: I'm sorry. Is he
24 going to testify and witness to any of this
25 incident?
30
1 MR. MAGAS: He's an expert.
2 MR. FUCHSMAN: Is he going to
3 testify to this incident?
4 MR. MAGAS: Yes. He's going to
5 offer opinions as to this incident.
6 MR. FUCHSMAN: I'm not asking you --
7 MR. MAGAS: He didn't see the
8 incident.
9 MR. FUCHSMAN: What opinions is he
10 going to offer and maybe I'll stipulate that
11 that's what he will testify?
12 MR. MAGAS: Okay. He's going to
13 testify that the -- given a set of circumstances,
14 Mr. Selz was operating his bike in a reasonable
15 fashion and in a competent fashion for a
16 bicyclist traveling at that point in time on that
17 road.
18 He's also going to testify that the
19 speeds that Mr. Selz was traveling at were
20 reasonable for bicyclists on that road and that
21 forty-five miles an hour is not only an
22 unreasonable speed for a bicycle, it's an unsafe
23 speed for bicycles due to a variety of factors.
24 MR. FUCHSMAN: We'll stipulate that
25 that's what this person would testify.
31
1 MR. MAGAS: Thank you, Mr. Byram.
2 That made life a little easier for us.
3 THE WITNESS: That's all?
4 MR. MAGAS: You're done.
5 THE COURT: Yes, sir. Please step
6 down. Any other witnesses?
7 MR. MAGAS: That's all, your Honor.
8 THE COURT: Any closing from either
9 side?
10 MR. FUCHSMAN: Your Honor, I would
11 simply say that some of the facts seem not to be
12 in dispute. Mr. Selz admits to going, at best,
13 eighteen miles an hour, at worst, fourteen miles
14 an hour. It's a forty-five mile per hour limit.
15 There's no dispute -- at least he
16 hasn't disputed there were six to eight cars
17 behind him. The officer has testified that some
18 of those cars had to come to a complete stop and
19 others had to slow down so we would respectfully
20 submit that there's no question that it was
21 Mr. Selz's slow speed that was impeding and/or
22 blocking traffic.
23 And as far as the reasonableness, I
24 would submit to the Court that that particular
25 provision comes into play when you have, for
32
1 example, weather conditions, it's icy out, it's
2 snowing out, and as a result -- as a result,
3 forty-five miles per hour would not be a
4 reasonable speed under those circumstances.
5 As we all know, the speed limits
6 that are posted are not the speed limit, they are
7 prima facie evidence as to what is reasonable,
8 and so the law makes provisions that under
9 circumstances -- under certain circumstances,
10 again, particularly if there's weather or there's
11 some sort of emergency around, going that
12 particular speed may not be reasonable.
13 But under these particular
14 circumstances where there's no evidence as to the
15 weather conditions being adverse, if a bicyclist
16 is going to take to the roadways, they have a
17 duty to not impede traffic.
18 They're no different, as I
19 understand it, than a motor vehicle. It seems to
20 me somewhat absurd to argue that a bicyclist who
21 is even at greater risk of harm can go five, ten
22 miles an hour, whatever speed -- I mean, this
23 case -- I'd like to know what happens when we get
24 the tricyclist, is the argument going to be that
25 that's as fast as a reasonable tricyclist can go,
33
1 it can only go one mile per hour and that's the
2 best that that tricycle can do, well, then that's
3 going to be reasonable? I think that that's
4 absurd.
5 The law is trying to protect not
6 only Mr. Selz but other traffic, and so I would
7 submit it's absurd to argue that the bicyclist
8 who has no protection around him is free to go
9 ten, fifteen, twenty, whatever mile per hour and,
10 therefore, become a danger to himself but a car
11 that would be impeding traffic, that that would
12 now be an offense because the car could go
13 forty-five miles an hour. To me that's absurd
14 and I don't think that's what the law was
15 intended to -- how the law was intended to apply,
16 and as a result, I feel that based upon the
17 evidence the Court has heard, that the City has
18 sustained its burden of proof.
19 MR. MAGAS: You may be wondering why
20 the lawyer here fighting over a minor
21 misdemeanor, and the reason is, this is a very
22 important case to bicycle operators. And I use
23 that phrase very particularly because bicycles
24 have a right to use the roadway under the law in
25 the State of Ohio and they're told where they're
34
1 supposed to be by the law in the State of Ohio
2 and special accommodation is made for bicycles.
3 Yes, they are vehicles under the
4 definition and they follow the vehicle rules for
5 the most part, but there are special niches
6 carved out for bicycles, one of which is to ride
7 as near to the right of the road as is
8 practicable. One of them permits bicycle riders
9 to ride two abreast. So two riders are allowed
10 to ride side by side on a roadway, any roadway in
11 Ohio. There are no bike bans in Ohio, and I
12 would submit that by this operation that the
13 prosecution is proposing, that essentially bans
14 bicycles from riding on Salem Avenue.
15 The reason this is important, the
16 reason I was asked to get involved by the Dayton
17 Cycling Club and the Cincinnati Cycling Club is
18 because Salem Avenue is an important bicycling
19 route for people who use their bicycle for
20 transportation as the state legislature intended.
21 Mr. Selz was going as fast as a
22 bicycle could. So you have to look at the
23 definitions as they're being used, and I think
24 the most important word in the ordinance is the
25 word traffic. What is traffic? And we don't
35
1 have to wonder about that because the State of
2 Ohio tells you under 4511.01 (TT). Traffic means
3 pedestrians, ridden or herded animals, vehicles,
4 streetcars, trackless trolleys, and other devices
5 either singly or together while using any highway
6 for purposes of traveling.
7 So Mr. Selz wasn't impeding traffic,
8 he was traffic. If someone had stopped in front
9 of him to prevent him from going, they would have
10 impeded him as impeding part of traffic.
11 Mr. Selz is accommodated under the
12 law because he's allowed to ride his bike on the
13 road and he was staying to the right side of the
14 road as he was required to do by the statute. So
15 he now becomes one thread in the fabric of
16 traffic, if you will, along with the horses or
17 whoever else -- the Amish buggies, whoever else
18 has a right to use the roadway and is lawfully
19 using the roadway.
20 There's no suggestion that he wasn't
21 lawfully proceeding as a cyclist. He was going
22 the right direction. He was in the right part of
23 the lane. He was at a speed that was the most he
24 could do. That's the point we were trying to
25 make here.
36
1 If the Court is going to take a
2 position that we can tell all the bicyclists in
3 southwest Ohio that any road that you can't hit
4 the speed limit, you're banned, then that's going
5 to set a terrible precedence, and that's again
6 part of the reason that I was asked to get
7 involved in this case.
8 To say that he has to go forty-five
9 miles an hour if he wants to ride on Salem Avenue
10 is absolutely ludicrous. At forty-five miles an
11 hour with two inches of rubber holding you to the
12 road, he's going to -- by the time he gets his
13 bike stopped, he's going to be in the next
14 county. That's a -- he can't ride that fast and
15 he shouldn't be required to ride that fast.
16 That's not what the law in the State of Ohio or I
17 think this ordinance requires him to do. By
18 using that word traffic, they've incorporated all
19 of the stuff that is traffic, and it's not just
20 cars and trucks and buses. It's all the other
21 things that are allowed to use the road, all the
22 devices as the statute says, including bicycles.
23 So the reason I was asking questions
24 about stopping or reduced speed is the law
25 apparently says the definition of impeding
37
1 traffic is to either stop or use reduced speed
2 because that's what the exception is, except when
3 stopping or reduced speed is necessary. If
4 Mr. Selz was not stopped, and there's no dispute
5 that he was, and he was not riding at a reduced
6 speed, which I think he testified that he was
7 not, he can't be prosecuted under the statute as
8 well.
9 So bottom line, bikes have a right
10 to use the road. He was doing what he was
11 allowed to do at a speed that was reasonable for
12 what he was doing. He was where he was supposed
13 to be and he can't be banned from riding on Salem
14 Avenue just because somebody else thinks it's
15 dangerous. He puts thirty-five hundred to five
16 thousand miles on the roadway each year on the
17 roads as a bicycle commuter, bicycle
18 transportation. That's all he has. He doesn't
19 have a car he can get into and go forty-five
20 miles an hour.
21 Bottom line is, the intent of the
22 statute was not met here. The bicyclist can't be
23 ticketed simply because he couldn't go forty-five
24 miles an hour.
25 MR. FUCHSMAN: Your Honor, I would
38
1 briefly respond that I believe that by not having
2 a ban -- a specific ban on bicycles on this
3 particular roadway, I agree with Mr. Magas that
4 bicycles are allowed, all things equal, to travel
5 on the roadway. However, they can't do it in
6 such a way that they impede or block traffic.
7 Frankly, if it's 2:00 in the morning
8 and there's no traffic around, there's no reason
9 why he can't be on the roadway going eighteen or
10 twenty miles an hour because you're not impeding,
11 you're not blocking traffic, and that would
12 then -- it would then be reasonable.
13 But when you get to the point that
14 your particular vehicle, whether it be a bicycle
15 or an automobile, is now affecting other traffic,
16 you are now in violation of the law.
17 I will respectfully submit that what
18 should happen here is you go your eighteen miles
19 per hour but if you start to impede traffic, you
20 pull off either to the sidewalk or to the --
21 where the gravel is. I mean, you get off the
22 roadway. You allow that traffic to pass you that
23 you are going to start to impede or block and
24 then you get back on the roadway and go your
25 eighteen miles an hour until you are impeding
39
1 traffic again at which point I think you have a
2 duty under the law to get off. That's what I
3 think that this -- I think that's what is
4 required here.
5 THE COURT: Anything further you
6 would like to add, sir? I'll allow it briefly.
7 MR. MAGAS: Just this whole concept
8 of getting off the road is exactly what
9 bicyclists have fought for over a hundred years.
10 If you go back to the history of
11 bicycling, bicyclists are the ones who paved the
12 road. They forced the government to pave roads
13 so they could ride on safe roads and then the
14 cars came along and has tried to shove them off
15 ever since.
16 Mr. Selz, if he's going up the hill,
17 if you've got a slow vehicle, you pass him,
18 that's what the law requires. It doesn't require
19 a slower vehicle to get off the road, and that's
20 exactly what we're fighting over is the bicycle
21 operators under the law in this situation.
22 THE COURT: Well, they're both
23 pretty good arguments, they really are. And I
24 understand where the concern comes in here with
25 this -- that you've traveled down here and it is
40
1 a minor misdemeanor case.
2 From what I'm reading in the statute
3 though, I do not read the statute as it saying
4 that he shall not travel at such a slow speed.
5 The way it's written in the ordinance rather,
6 that his slow speed -- I don't think they mean
7 relative to his speed. For example, I am
8 interpreting this, and it may be an incorrect
9 interpretation on my part, my interpretation of
10 this is that his speed is slow in comparison to
11 the other traffic.
12 I do find that the State has carried
13 its burden of meeting that ordinance, but with
14 that being said, I certainly understand the
15 impassioned defense on this case because I do
16 believe that bicyclists need a place to ride and
17 it is not safe a lot of times to ride it on the
18 streets on 49. I don't even think I'd ride there
19 at 2:00 a.m. just because of the traffic. I
20 don't think it's safe. But I do find that in
21 this case, with the ordinance as it's written and
22 my interpretation, that there was a violation of
23 that ordinance. And I didn't get a copy of your
24 brief.
25 MR. MAGAS: I filed it. They told
41
1 me -- I thought they were going to walk it over.
2 I would be happy to --
3 THE COURT: Was it filed today?
4 MR. MAGAS: Yes.
5 THE COURT: Okay. All right.
6 MR. MAGAS: If we're done, I don't
7 know what the procedure would be if Mr. Selz
8 would want to appeal, but is there a way to
9 protect the record then for that --
10 THE COURT: You can certainly ask
11 for a copy of the videotape if you want to have a
12 court reporter do that.
13 MR. FUCHSMAN: Your Honor, I
14 recognize this was a close call for the Court,
15 but I also want the Court to take into account
16 that within a month prior to this there had
17 already been a warning in this case and --
18 THE COURT: Okay. That's going to
19 be a hundred dollar fine and court costs.
20 MR. FUCHSMAN: Thank you, your
21 Honor.
22 MR. MAGAS: Thank you, your Honor.
23 * * *
24
25