Wednesday, February 3, 2010

A letter came in the mail.

It said: Re: State of Texas v. ChipSeal (Poetic license, don’t ya know!)

Hmm. It’s me against the entire state of Texas? I think I could be a contender to get the Nobel prize for being the most annoying cyclist, don’t you?

It went on: Dear Mr. ChipSeal, The offense of impeding traffic is defined at Section 545.363 of the Texas Transportation Code. Sincerely, Toby Mash, City Attorney for Ennis Texas.

Well, certainty! Now with a fixed charge, I can defend myself!*

How this came about

In my narrative A Tale of Two Jails, a judge (Who it turns out is Municipal Judge Johnson) released me with the promise that we would meet in the next week. He spent nearly a half-hour with me.

He said he was interested in hearing a defense for cyclist’s use of the highways.

He is very idealistic of juries, and spoke of them as being a forum of “equity” for the community. He encouraged me to choose a jury trial.

He said at this judicial level, it was reasonable for me to represent myself, and that a wider latitude of conduct would be extended to someone who did so.

He answered many of my process questions, including how to submit a motion to the court.

I was surprised when he suggested that I speak to Mr. Mash about it. So I did.

I went to Mr. Mash’s office and walked in unannounced. I expected that I would need to make an appointment. To my surprise, Mr. Mash dropped all that he was doing and immediately sat down with me for about twenty minutes.

He too was helpful with my process questions, and enlightened me on some of the bureaucratic details of how this whole thing goes down.

Jury trials

Should I choose a jury trial, 24 Ennis residents will be assembled on a Wednesday evening. Both Mr. Mash and I would be able to ask questions of them under the watchful eye of Judge Johnson, and both Mr. Mash and I would each be able to disallow six of them without reason. The goal will be to empanel six jurors before it becomes so late that we annoy them. (That part worries me. I seem to be extraordinarily annoying!)

I find this task daunting. Both judge Johnson and Mr. Mash advised me to bone up on Texas Jury Selection rules. I will also be required to pay a fee to cover some of the cost of empanelling the jury. (Mailings and the like.)

Separate trials?

Mr. Mash said I could file a motion to combine my charges into one trial. I am inclined to do so. The three Ennis City violations are essentially the same, and if I prevailed on one charge tried separately, the remaining two would be dropped.

If they are combined, I will have the opportunity to question all of the officers involved.

On filing motions

A motion is submitted in writing to the court clerk, and if granted by the Judge, is sent on to Mr. Mash’s desk. (What? No internet submissions?**)

Mr. Mash said that when the motions begin hitting his desk, he then proceeds to see if a case can be made, usually by interviewing the arresting officers.

I asked about getting information about what particular law I am accused of breaking, rather than the vague description of “impeding traffic”.

He said that the formal charge, including the section of the law, is normally sent to the accused ten days prior to his trial, but a motion could be submitted for an earlier release.

Since I had on my person a written out motion for that very purpose, I asked him to look at it to see if it was what the court expected in a motion presented to it.

Because Eli Damon was so good as to include his lawyers motion in his discussion of his case, I adapted it for my purpose. The paper Mr. Mash saw said this:

Motion for disclosure of statutory relevance.

Your Honor, I do not yet know what statute I am being accused of violating. My ticket only says “impeding traffic”. There is no reference to any chapter or section of the Texas Transportation Code, or any other law other than this vague description of violation.

I am certain I was operating my vehicle lawfully under the bicycle specific rules found in chapter 551. Operation Of Bicycles, Mopeds, and Play Vehicles. I am very familiar with those statutes. Therefore, my accuser must have some other, undisclosed and unknown to me portion of the law in mind to have so accused me.

Would the court order the prosecution to disclose the statute under which I am accused? Without such information I am unsure as to how to defend myself.

With that as an example before him, I asked about filing a motion to see relevant dashcam video. He told me to be as specific as possible in my request, and that generally I would be able to see the video but not have a copy. Because I found Eli Damon's motion so helpful, I intend, once this whole thing is done, to publish the motions I submit to the court, and any other helpful things I come across.

He then returned my motion to me. Thus this letter of disclosure to me was a happy suprise.

*Sec. 545.363. MINIMUM SPEED REGULATIONS. (a) An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

**Submitting a motion electronically is impossible, because by doing so it changes into an e-motion! Why am I the only one who laughs at my jokes?


  1. I sense a Bravo reality show in the making!

  2. Seems like Selz vs Trotwood has the impeding issue covered: The Texas definition of traffic seems identical to Ohio's:

  3. This looks like it's going to be a slam-dunk, but I realize that nothing in the Texas judicial system is that simple. Good luck. A lot of cyclists are watching you.

  4. If you try to act as both your attorney and your own expert witness, it will be almost impossible to win, no matter how solid your case seems. Most judges and juries will always give more credence to the "expertise" of a police officer over a defendant. Cop trumps chump, period. There has to be a competent LCI or two in Dallas you can get.

    Trotwood is a gamble. The language is similar, so the logic should apply, but it has no legal precedent in TX. I think you need an experienced trial lawyer to tell you how best to play this card.

    Your basic argument is that you cannot be guilty of impeding since you were going as fast as you reasonably can. But you have to convince them that that is the intent of the law, the way the court did in Trotwood (and the case it depends on). There is no guarantee that this judge or jury will find this argument to be compelling.

    I would be inclined to go with a judge since your case depends on logic and law and not on emotion, but, again, i would consult with a lawyer.

  5. Impeding? I don't think there was a line of cars behind you and I don't think you made anyone late for happy hour.

  6. Hey Chipseal! Thanks for posting all these juicy details of the process. I ain't no lawyer man, but I also wonder about whether it would be possible to pick a jury that would apply the law as it is written rather than bend it to fit their likes and dislikes. You are, after all, a Nobel MAC Prize contender.


  7. We all know logic and reason do not apply to the way Americans view cycling on the road. It doesn't even apply to the way Americans perceive delay. Add distorted views of cycling to distorted perceptions of delay and you have the perfect storm of impenetrable ignorance.

    Deconstruction could be possible, but it requires a case that will destroy the mythologies used to justify discrimination against human-powered vehicle drivers: The mythology of danger and the mythology of delay. In addition, he will have to expose the jury's cultural bias against bicycle driving without offending them. It's possible, but not easy.

    While a jury seems unsafe, judges also have a track record for not being impartial and ruling on law in cycling cases. There have been several recent cases in California that should have been dismissed because the law very clearly permitted the cyclist to be claiming the lane, and yet were lost because the judge substituted prejudice for law.

  8. Keri is correct that bias can play a role whether with a jury or a judge. However, there are less people to convince with logic with a judge, and court costs are likely to be lower.

    Keri's video that includes the cop riding in the lane, and then talking to the impatient honking motorist, might be persuasive. Pick video carefully as I'm sure no judge or jury wants to watch 20 minutes of it.

    There's almost also certainly documentation from police bike training. The LAB documentation is pretty weak.

  9. That statute also defines a way to set minimum speed limits. If a bicycle cannot operate safely at highway speed, it seems like the state has to post minimum speed limits to apply this statute in a citation.

  10. Even more to the point; and perhaps persuasive to a jury.

    If Chip IS guilty of a violation, he will become subject to arrest upon entering the road in front of his driveway, as it has no shoulder and there is no legal way for any traffic coming up behind him to pass. This is much more obstructive than what he was cited for. Officer Watson will have a sure fire conviction if he merely waits for Chip to head out to restock at the grocery store. Essentially, a conviction would make it illegal to walk or ride on the road in front of his house. The only way to get out would be to slog through the grass and ditch.

    Yes, it really DOES mean more to Chip.

  11. I guess he could also avoid arrest by buying a working car, but I don't think many would agree that failure to own a car should be a criminal offense. Not even in Ellis County.

  12. Although we have our differences in riding style, know that I am 123% behind you on this matter and I hope it is fully resolved in your favor.

    All the best,



  13. I advise you to contact the Texas Bicycling Coalition in Austin, if you haven't already done so. They have some resources and advice available for you.