CVC 21202(a) Appeal Opening Brief by Andrew Woolley
Posted By Sam Ollinger on December 9, 2009
CVC 21202. Image from Njord Noatun
Andrew Woolley sent us the Opening Brief to his Appeal [pdf link] stating that he did not violate CVC 21202(a).
Woolley also added:
I am awaiting the City Attorney’s Respondent’s Brief. I will have the opportunity to issue a Reply Brief within 20 days of receipt of the Respondent’s Brief. The City Attorney has 30 days from last Wednesday to submit their brief. The Reply Brief is where I could really use some help, as it will be directly responding to the City Attorney’s opinion. It will also be my last chance to submit anything to the appeal board. I would greatly appreciate any assistance or advice for the Reply Brief. I guess the most helpful thing right now would just be an evaluation of the effectiveness of my opening brief, and what line of attack to expect from the City Attorney.
It will be interesting to see how the City Attorney responds to the Appeal. If the decision is reversed, we’d also like to push to have the city actually educate it’s officers on the letter and intent of the laws that pertain to bicyclists. I have also posted the conclusion below which summarizes everything extremely well:
Andrew Woolley submits that he did not violate California Vehicle Code 21202(a) as cited by Officer David Root of the San Diego Police Department. Because he was traveling at a speed greater than the normal speed of traffic at the time of the citation the code in question does not apply. Because he was overtaking and passing vehicles moving in the same direction of travel the first exception to the code has relevance. And because he was approaching a place where a right-hand turn is authorized the fourth exception to the code has relevance. The misinterpretation of CVC 21202(a) demonstrated by Officer Root and supported by the Superior COurt Judge Pro Tem promotes the exact dangerous practices the code was written to discourage. Andrew Woolley is an educated, forthright, and law abiding citizen who read the vehicle codes pertaining to the operation of bicycles on California roadways before he began commuting daily. He followed the law in this case, operated his bicycle safely and in keeping with the liberties afforded by the vehicle code, and was cited by an officer with a poor understanding of the letter and intent of the vehicle code. Andrew Woolley, and the cyclists of California, respectfully ask that this Court reverse the decision of the trial court and refund the full amount of the paid fine.
[...]As I noted in the companion post on this issue, a cyclist in Logan, Utah was convicted this month on a misdemeanor charge of improper passing on the right of a vehicle. A few months before, in August, a cyclist in San Diego, California who passed a lane of traffic on the left was convicted for the infraction of not riding as close to the right as practicable. This case is a mirror image of the case in Utah, and like the Court in Utah, the California Court got the law wrong on several points.
Let’s take a look at what happened to see why.[...]
I am really looking forward to the City Attorney’s Respondent’s Brief. Essentially, it will force Jan Goldsmith to put in writing the city’s interpretation of CVC 21202(a). It does worry me that my lack of lawyering ability will be attacked and will outweigh the validity of the argument against the citation. That’s why some legitimate legal aid would be nice in preparing the Reply Brief. We’ll post more in the near future about the lessons learned in this case, i.e. what I should have done differently from the start, in court, and in the appeal process. If this case is successfully appealed it will serve as Judicial Precedent for anyone else charged with violating CVC 21202.
Just two brief suggestions: In the 5th line up from the bottom, I would change “liberties” to “regulations and responsibilities” and second, I would change the passage about Officer Root from “and was cited by an officer with a poor understanding of the letter and intent of the vehicle code.”
to
“and was cited by an officer whose actions convey a poor understanding…”
We don’t know if he has a poor understanding or not. He may have not liked the riders’ haricut.
The Opening Brief has already been submitted to the City Attorney and the Appellate Division of the Superior Court, so any typos or unclear sentences are unfortunately stuck as-is.
I too cannot wait to see how the City responds. What happens if they don’t respond? Woolley wins the appeal by default and no precedent is set? If I was the city attorney, that’s what would be my choice.
What a stinking pile this officer and judge have created for the city attorney. I can’t even imagine how one can defend this judge’s decision intelligently in writing. It has no basis in law; none. I thought I might have been missing something somehow, but now that lawyers Mionske and Bernardi have looked at it and confirmed, there is no question. Can you imagine the poor intern who gets the short straw and has to write this one up? Are they going to try to argue that the speed limit establishes “The speed of traffic at that time” regardless of the actual speed of traffic at that time? That approaching a place where a right turn is authorized does not meet the criteria for the “approaching a place where a right turn is authorized” exception? That being in the process of passing another vehicle does not meet the criteria for the “when passing another vehicle” exception? I mean, these facts are undisputed. The wording in the statute is clear. What on Earth can they possibly say? I say they are going to punt, whatever the legal equivalent of that is.
The last sentance on page 8 really summed up where I think the court went way over bounds in its determination of where cyclists are able to choose where to ride.
If I may ask, who (if anyone) helped in the drafting of the appeal? We often don’t see legal documents like this. It certainly has the format and referencing to adhere to professional standards, but as mentioned by Esteban, some informalities that indicate self-representation.
And finally, laws are represntative of the time (blue laws anyone) and can constantly be innovative (Idaho stop law) so hopefully, what we end up with is a less cycling biased court and police force.
I wrote the draft by myself. SDCBC tried to aid me in getting some legal help, but the response was wholly underwhelming, and as I had only 30 days to submit, and a full time job, I just went ahead and did it myself. I think that the wide dissemination of the transcript has really helped in drumming up interest in the case, and I shouldn’t have a problem getting some good legal help in writing the reply brief.
About the possibility of the punt: I feel that no matter the outcome, political pressure can be used to maybe fix the problem. It may end up that I don’t get my $165 back, or it may end up that Jan Goldsmith doesn’t respond. Either way, a barrage of letters to the city counsel citing the specifics of the case and the city attorney’s response, or lack thereof, should have some positive impact on cyclists in San Diego, and the SDPDs training on cycling laws. Or maybe I’m just being naive.
Andrew,
I guess it is a little late, but I didn’t know about this until yesterday– if you need a lawyer’s perspective or assistance in drafting any future documents, let me know, I’d be glad to help, pro bono. Great job drafting your response– good luck.
[...] You can read the full transcript of the Woolley case here, and see the opening brief to his appeal here. [...]