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Motorcycle Law: Documenting Accident Scene

Friday, November 26, 2010
If you are in a motorcycle accident in Colombia you will find yourself having to prove your innocence  the legal system being based on Napoleonic Law: guilty until you prove yourself innocent.
The immediate moments following an accident are refered to as the 'golden hour' in law, where crucial pieces of evidence can be documented in their original state.
The unthinkable just happened. You’ve just gone down because an inattentive driver slammed into you while changing lanes. You’re stunned and still so full of adrenaline that you can’t feel any pain. Your shoulder’s hanging unusually low, and you know you’ve probably snapped your collarbone. You can barely stand on your left leg. You’ll find out a few hours later at the emergency room that you fractured your fibula, your collar bone and suffered a concussion.

Back at the scene of the collision you inspect your helmet and see scratches down its side. You notice the SUV that side-swiped you on the shoulder of the freeway; its driver speaking with a police officer. Shortly thereafter, an ambulance and the fire department appear on scene. You’re asked some questions from EMT’s about what happened and how you’re feeling. They check you out, secure you onto a gurney and load you inside the ambulance.

While in the ambulance, a police officer pokes his head in and asks you a few questions about what happened. Your head is starting to throb and you feel nauseated. You’re in a fog but you do your best to answer. The officer leaves and you’re transported to the hospital. You spend two days there to have your collarbone plated and lower leg casted. You’re also informed that you will be out of work for at least six weeks.


Differences between what was documented and what actually happened can be drastic. Make sure there is visual documentation to support your own case.
Fast forward a few weeks. You’re on the phone with the SUV driver’s insurance adjuster trying to get your ride repaired and your medical bills paid. The unthinkable has just happened again. You’re informed by the adjuster that the police report found you at fault and that there was no evidence of a collision between you and the SUV. After obtaining and reviewing a copy of the police report, you notice that no witnesses were listed (despite seeing several people stopped at the scene) and that the driver of the SUV denied making any contact with you. Even worse, the statements in the report attributed to you are inaccurate. It’s a nightmare. How could this happen?

Unfortunately, scenarios similar to this happen much too often. Although many police officers are diligent in their investigations, critical pieces of evidence such as witnesses, paint transfers, skid marks or roadway debris are often left out of police reports. Some police officers are also biased against motorcycle riders. The unfortunate result is police reports that often place some or all of the blame on the motorcyclist, and insurance companies who rely heavily on police reports to determine liability. So what could you have done in this situation to prevent this nightmare?

In emergency medicine, the “golden hour” refers to a time period lasting from a few minutes to several hours following injury during which there is the highest likelihood that prompt medical treatment will minimize the injury. There is also a “golden hour” in law. It is the same time period as above where the prompt gathering and preserving of evidence will minimize legal harm to you.

rider in ambulance...
If you are seriously injured, make sure to quickly arrange for someone else to take photos of the accident scene.
Let’s “rewind” to the scene of the collision. During the “golden hour” do not rely on police officers to document the scene of an accident for you. Their work is a start, but all too often insufficient to support your claim. In almost 20 years of practicing law, I have seen critical witnesses and other key pieces of evidence left out of police reports way too often. This missing evidence often makes the difference between winning or losing a case. If you are physically capable, take photos! If you cannot, have someone else take photos, such as a companion rider. If you were alone, call a friend, family or co-worker to come to the scene to take photos and assist you. If no one comes out to help, ask a friendly witness to take photos with your phone.
 
Photo document the entire scene of the collision. Take photos of the general area, the specific location (mile marker or landmarks), the vehicles involved and their locations (including your bike), damage to the vehicles, paint transfers, license plates of all involved and stopped vehicles, skid marks, roadway debris from any source (gravel, etc.) and any unusual conditions. “Unusual conditions” are anything that raises your eyebrow. People often perceive things that are amiss only unconsciously. The only signal we receive consciously is a gut feeling that something is off. Don’t ignore that feeling. At worst, you will have wasted a photo. On the other hand, you may have preserved a key piece of evidence.

Vehicles with ABS often do not leave actual skid marks but may leave “ghost-skids” that rapidly disappear over time. These can be critical pieces of evidence that will disappear quickly if undocumented. Even if you can’t measure skid marks, accurate photos of skid marks or “ghost skids” will allow someone to return to measure them or enable experts to reconstruct their dimensions even if police failed to take adequate measurements.

Regarding witnesses, get their names, addresses and phone numbers. Ask around. Don’t be shy. Again, do not rely on police to obtain all witnesses to the collision. Again, if you are incapable, ask for assistance from a fellow-rider or anyone who comes to the scene. Police often receive calls to other accidents and must leave the scene before
She cleans up nice  I promise.
Small details like scratches, paint transfers, dents and even your own clothing can serve as valuable evidence later on.
conducting a thorough investigation. They often miss critical evidence and witnesses. Once the police cuts everyone loose from the scene, key witnesses may be gone forever. That missing key witness may have witnessed the contact between the SUV and you.

To the best of your ability, remain calm with the police officer and the offending driver. No matter how valid your reasons for being angry at the scene (and rightfully so), it never looks good to have a police officer testify at trial that you were uncooperative or belligerent at the scene. Jurors tend to assume you are hiding something. Assume that everything you say and do at the scene will be evaluated by a jury a year or two later. You want to appear reasonable at all times.

Although your clothes and helmet may be ruined, save them! They may contain evidence of paint transfers and can make compelling trial exhibits. Your bashed in helmet will help a jury understand the mechanism of your concussion and the reasons for your residual cognitive problems.

Although your diligence in documenting the scene of the collision may not be enough to change an insurance adjuster’s mind, it may very well make the difference between winning or losing your case in court if you are forced into filing a lawsuit because you were not treated fairly by the insurance company. Trust me, your lawyer will appreciate the photos and witness information. And your case will be helped that much more because of your clear thinking during that “golden hour.”
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Comments
leeann -mom  December 9, 2010 05:23 PM
Please tell me what to tell my son. He is 33. Has ridden on and off for several years. He also drinks. Early the night before Thanksgiving... He and his wife visited friends had a few drinks. Left for home after a swug of whiskey. Got about 1/2 mile down unfamiliar road when he dodged a deer. Got off onto wet pine straw. Down they went. Wife drug off at beginning of slide. He tried to hang onto bike. From one side of road, back into road. He left bike there. Bike continued into other ditch. He was unconscious. Passerby gave her a lift to nearby houe. 911 was called for injured biker. People kept wife to attend her wounds. They called house of friends who came to help. Friend found my son on his feet with bike standing upright. My son was trying to put sadflebags back on bike. Son did not even notice friend coming. Till he was face to face. Then he ask about his wife 4 separate times and was assured each time that she was okay. Friend persuaded him to sit down and wait. Ambulance arrived as did sherriff. My son only remembers speaking to guy bandaging his hand. He was cuffed, arrested for DUI jailed till later Thanksgiving afternoon when a friend made bail on a holiday. The arresting officer never ask about a passenger. When my son ask where his passenger was duh...they were at the jail. Another officer had to go see about her. He was not taken to the hospital. 18 hrs later when i got a call from him he, was still very scrambled. The accident was 2 weeks ago today. He still can not put the pieces together. He knows he hurt his head. He thinks he fractured his arm. I suspicion possible rotator cuff damage. His hand is raw almost to the bone on ring finger. He helped me get vehicle home from shop today. He is moving very slowly. He had great deal of difficulty opening door with key.
Dale Ordes -How do you help without getting falsely accused?  December 5, 2010 01:15 PM
CNA tells us to drive right by road accidents to avoid being falsely accused of being involved in the accident. Bikerrandy tells us we may be unable to take care of our own accident scene because we may be zonked out or badly injured. Who is going to take down license numbers, get witnesses and so forth if the rider cannot? If we see an accident involving a bike, shouldn't we stop to see that the biker's interests are taken care of? If not us, then who? Where should a passing biker pull over to help the fallen biker and, at the same time, insure that the Good Samaritan does not get roped into false charges by the auto parties or by hostile police? I really don't know, I am just asking. Upstate Traveler
Hutchy -Save & Sending MotoUSA Articles  December 2, 2010 10:04 AM
Matt: We have the ability to share this by E-mail, Facebook or any other social media outlet you can get your hands on. The box in the upper right hand corner of every artcile has the links you need to make it happen.
Ron -Former MSF Instructor  December 1, 2010 09:03 AM
Even if the accident was your fault (which it probably was, since you were not riding defensively), never admit fault. Put the burden of proof on the police and insurance investigator. Keep communication with the other party to a minimum, exchanging only full identification and insurance contacts. During a major accident I had, I commented to the offending driver that I hoped he had good insurance and this was brought out in the deposition I made later. Never comment about the damage to your bike if the opposing insurance company has had access to your bike, unless their offer of reimbursement is too low. Also, be careful when dealing with your own health insurance, especially regarding "right of reimbursement" or "subrogation". Get a lawyer soon.
Judy Z. -In Remeberence of Motorcyclist Jack Epps and Gratitude for Officer Lance Erikson  November 30, 2010 05:12 PM
Thank God for Officers that take their duty to serve the people seriously wihtout discrimination. Those that treat motorcyclist like any other person on the road. They follow the law to the fullest seek out the truth through evidence and not just the words of the only witness who evidently was the driver causing a fatalty to a motorcyclist that will live on in the hearts of all who knew him, Jack Epps. Thank you again Officer Lance Erickson out of Yuba City for knowing that all motorcyclists deserve their rights and the right to be heard through the evidence that they uncover. Forever grateful for allowing Jack Epps to depart this earth with truth and the dignity he deserved.
Arnold -Insurance  November 30, 2010 11:45 AM
Never relay on the other persons insurance, changes are they don't any or enough to pay for your medical bills. The rider (you) need to carry as much insurance as possible to cover your medical bills, lost wages and bike repair.
AnotherLawyer -Good advice  November 29, 2010 06:49 PM
This article is good advice. I got hit a few years ago coming home from work and while the other driver was clearly at fault, I was still lucky enough to have a former motorcycle officer do the investigation. The first thing he said to me at the hospital was "I ride a motorcycle too, we'll take good care of you." I ended up collecting a lot of money in the long run, and healing up well with no long term effects. You will have to talk to police eventually, but do it until you are sure what happened. Think carefully before you describe the accident. Make sure you have a good idea of the speed you were going and describe how your right of way was violated, because these are the things the officer will be most interested in. If you are being carted off in an ambulance or are in the hospital under the influence of drugs, ask the officer to come back later.
Matt -Bike Wreck  November 29, 2010 06:44 PM
Wish there was a way to save and send this.
motousa - adam -this is great info  November 29, 2010 04:22 PM
thanks oliver!
CNA -Came up to an accident and pulled over to help  November 29, 2010 03:14 PM
DON'T EVER DO THIS IF YOUR ON A MOTORCYCLE... I was accused of causing the accident. I wasn't even there when it happened I just happened to have some medical equipment with me so I pulled over to help. Bastards arrested me on site and I ended up in jail for 2 weeks while the victims of the accident gained consciousness and said I was there helping and not the cause. So much for that I still spent two weeks in jail.
bikerrandy -bike accident things to do..........  November 28, 2010 08:02 PM
All this article talks about is what to do if your brain hasn't been effected in a bike accident. The probability of that is not good. Unless you've already had your bell(brain) rang, you won't understand this. NO one is going to be thinking normally if their head has been smacked, helmet or not. All I can say is, good luck on doing what's best for you if you have a bike accident.
NO MORE BIKE! -THIS SUCKS!  November 28, 2010 01:33 PM
Great Article! Bike or auto wreck, records are so key to proving what indeed happened. Other drivers will lie to try and avoid penalty. "F" them. As Oliver says, take charge of the situation to the best of your ability. I crashed my bike last spring, and was reimbursed by my insurance company thankfully. Keep your heads up! Ride Safe! I didn't :(
nuttyprof1 -Thanks  November 27, 2010 09:22 AM
It does happen. A fellow rider told me once of a collision with a car downtown Los Angeles (car cut in front of her). She was thrown to the bground and her bike suffered some damage. The driver stopped and asked if she was OK, then she got back in the car and left. My friend did not have the presence of mind to get even the license plate of the bastard who cut in front of her.... It's good to try and keep your wits and know what to do in those situations.
Tom Brooks -evidence  November 26, 2010 10:29 AM
I ride with a small camera on handlebars always on. If I am by myself and get knocked out and unconscious, I still have evidence of how it all happened. Ride safe!
bikerrandy -your MC accident  November 26, 2010 09:51 AM
All this is informational, but the reality is what's the probability it will happen?

9 years ago we got into a MC accidemt caused by the PU truck driver turning left in front of us. I was unconscious untill I woke up in the ambulance. If it wasn't for my wife riding w/me the lying truck driver would have gotten off, but my wife told the truth when the CHP interviewed us at the hospital. The driver's insurance paid in full.

And yes, some police officers are anti-motorcyclists.
Lance -rider  November 26, 2010 09:41 AM
good info