PRESS RELEASE FROM BIKE LAW’S NATIONAL DIRECTOR RACHAEL MANEY
In light of the recent Waller Bike Crash in Texas, and in an effort to help untangle and unpack some of the emotionally-charged comments, questions, and inaccurate assumptions being made, we want to update you on the parts that we can share. I hope that this will also help clear up any confusion regarding some of the misinformation we’ve been reading in many of the media articles that have been published and on numerous social media channels, ours included.
Bike Law Texas’ Charlie Thomas of Huber Thomas & Marcelle, LLP and Bike Law’s founding attorney Peter Wilborn of Wilborn Law, LLC were retained last Sunday, September, 26, 2021, the day after the multi-victim bicycle crash on Business 290 East in Waller, TX, to lead the civil investigation and represent all 6 of the cyclists who were almost killed while on a training ride for Ironman Texas exactly one week ago today.
Our 6 clients are suffering from horrible injuries including broken vertebrae, cervical and lumbar spinal injuries, broken collar bones, hands, and wrists- many of which require surgical intervention- as well as multiple traumatic brain injuries, lacerations, soft tissue damage, road rash, and extensive bruising. And those are just the physical injuries.
The driver of the black F-250 that crushed our clients’ bodies and left them and their bikes splashed and scattered across the roadway is a 16 year old Waller, Texas male. Through our own investigation, we’ve learned his name, his address, the names of his parents, aunts, uncles, grandparents, neighbors and family friends. We know the names of the businesses owned and operated by the driver’s family. We know where he was earlier in the day, prior to crashing into our clients while they were more than 70 miles into their USAT tri-club training ride. We know the identity of his passenger (a local 17 year old male from a neighboring town) and a pretty good idea about the role he may have played in causing the crash that sent ALL of our clients to the hospital; 2 by Life Flight, 2 by ambulance, 2 by personal transport. (Texas licensing provisions allow for licensed drivers between the ages of 16-17 to lawfully operate a motor vehicle with no more than 1 non-family member passenger who is under the age of 21 at a time.)
The driver’s family’s connections in Waller are a legitimate reason for concern, but I know that Charlie and Peter are very well versed in handling the challenges that nepotism can create.
JUDGE: WALLER “DOESN’T LIKE YOUR KIND”
The backdrop of the Waller Bike Crash is one riddled with anti-bike bias. Charlie knows all too well as he has recent experiences with judges there, one who actually lamented to him that Waller, TX “doesn’t like [our] kind.” Charlie has formerly represented several cyclists who were targeted and ticketed by Waller police over the last couple of years. He went to Texas A&M in College Station to race bicycles and he has a law office in Houston. He has been a dogged legal advocate (alongside Bike Law Texas’ partner BikeHouston) for the changes needed to make cycling safer both locally and on a state-wide scale. This advocacy includes exposing and fighting against those who choose to selectively enforce the law for only a select few.
Our clients are not only hostages to the truck driver’s behavior and their own broken bodies, but also to a criminal process that is supposed to help make them “whole” again in a place that “doesn’t like [their] kind.”
This teenage driver assaulted other cyclists by “coal rolling” them before plowing into our clients just moments later. We know he did not “lose control” of his truck. We know that he knew exactly what he was doing and that Waller PD’s Officer Charles Mistric falsely stated in a report (which has not yet been provided to our clients or to us) that all of the riders were riding two abreast, according to a published article in the Houston Chronicle. Texas law allows for riding two abreast, however Mistric’s mention of the cyclists’ lane positioning seems more like the kind of victim blaming comments we see from internet trolls, and less like what we would expect from a law enforcement officer investigating the scene of a crime (plus it’s not true).
Officer Mistric went on to say that the “driver stated that he was reaching for his cell phone to call his dad and struck the bicyclists before he could react.” Given what we know from the eye-witness testimony from one of the cyclists who was assaulted by the teenage driver immediately before he drove his truck into the 6 bicyclists and the testimony of several others, we do not find the driver’s or Mistric’s statements to be credible at all. Additionally, Texas law does not allow for any driver under the age of 18 to use a hand held device while operating a motor vehicle.
We also know that this was no “accident” caused by a “new and inexperienced” driver as his criminal defense attorney would like people to believe. Rick DeToto, who has been retained to represent the teenage driver, went so far as to say that this event “did not involve any criminal intent.” After 23 years of representing bicyclists and bike crash victims, we know that when there is no real defense to proffer, turning a perpetrator into a victim is the only limp “defense” that exists.
Additionally, nowhere and at no time in the interviews Mr. DeToto has given to the media has an apology been expressed.
COAL-ROLLING IS NOT THE ACT OF A “NEW AND INEXPERIENCED” DRIVER
Charlie says, “driving recklessly, assaulting, and running down other roadway users is not the trait of a ‘new and inexperienced’ driver. If it was, we’d all be endangered by every young driver.” Peter followed Charlie’s sentiment up by saying, “This teenage driver that caused the Waller Bike Crash knew exactly what he was doing. He must be held accountable for his choices and actions that scared and injured our clients on a Texas highway.”
Elton Mathis, the Waller County elected DA, is now in charge of the criminal investigation into the Waller Bike Crash. He’s assigned a Special Prosecutor for this case, Warren Diepraam, who does not reside in (nor is he from) Waller County. He was handpicked because of his investigative and prosecutorial work across multiple Texas jurisdictions.
Mr. Diepraam was formerly a prosecutor in Harris and Montgomery counties. While in Harris, he formed the first ever vehicular crimes division in the state of Texas. Additionally, Mr. Mathis and Mr. Diepraam have hired a crash reconstruction engineer to fully investigate and understand what occurred leading up to the 6 bicyclists being struck.
Currently, victim interviews between the prosecutors and our clients are being scheduled. Waller PD did not ask for a single statement from any of them at the scene of the crash or at the hospitals to which they were transported, and all 6 bicyclists were conscious and wanted to participate in the Waller PD led “investigation” at the scene. One witness who was riding behind our clients and the other smaller group of cyclists who were assaulted when the driver coal-rolled them told us that while she was tending to two of the most seriously injured bicyclists, the only thing Officer Charles Mistric said to her (she was not asked to provide a witness statement either, nor was her contact information taken by any Waller PD officer at the scene to provide a statement at a later date or time) was that [the crash victims] would need [his business card] and that the crash report “would take at least 10 days,”as he handed the card to her with the hand-written report number on it.
In our meeting with our clients yesterday, Charlie was able to reassure them that despite the complete lack of appropriate investigating by the Waller PD, “the District Attorney’s office has expressed their concern for [all of you] and is committed to carrying out a full investigation to hold those criminally responsible accountable.” Peter added, “A charge of aggravated assault with a deadly weapon is proper. The driver recklessly caused bodily injury using his truck as a deadly weapon.” Such a charge is a second-degree felony.
At this time, Charlie, Peter and our team have NO reason at all to associate the earned reputations of Waller PD and City of Waller officials to Mr. Mathis or Mr. Diepraam, and in fact, we and our clients have been shown the kind of professionalism and compassion that is, unfortunately, precedent-setting in our line of work. Charlie and Peter’s request of everyone who’s expressed concern for the 6 bicyclists is to allow the Waller County DA’s office to do their jobs so that a complete and honest investigation into a Waller, TX bike crash can finally occur; maybe for the very first time.
What I ask of you is to thoughtfully consider the following: If you were in any of their shoes, could you physically, financially, and mentally afford to let the process play out while struggling to prevent the driver who almost killed you and your friends from stealing any more from you than what he’s already stolen?
Do you have someone who could take countless hours and/or days off of work to drive you to your doctor’s appointments? Take you to surgery? Care for you in your surgical recovery? Do you have someone who could be there around the clock to help you stand up, sit down, bathe, brush your teeth, get dressed, and eat? If you have children, how would you explain what happened to them and assuage their fears while also managing your own? If you were lucky enough to be able to, how would you feel getting back in the saddle the first time you’re riding on the road again and you hear the growling engine of a giant truck approaching behind you?
What if your employer couldn’t afford to pay you while you’re unable to work? What if your phone calls to schedule necessary appointments with medical specialists ended with a refusal to treat you because your injuries were the result of a collision with an automobile and their office is worried that they won’t get paid?
It’s not just the driver who caused the Waller Bike Crash that has victimized our clients. It’s also the length and total burden of the processes on both the criminal and civil sides of their case to which they are also hostages. They lay in their beds, robbed of their quality of life, unable to sleep, in many different forms of constant pain, and all they want is to go back in time and not be assaulted by someone who’s lawyered up and can’t even bring himself to say, “I’m sorry.”
HOW YOU CAN HELP
Many of you have asked if and how you can help these 6 cyclists suffering from the aftermath of the Waller Bike Crash. The answers are YES, and here’s how you can help our clients right now. The donations to this GoFundMe will provide them with some immediate relief that will allow them to focus on what is most important: their physical recoveries.
IMPORTANT ELEMENTS OF THE WALLER BIKE CRASH
To answer some of the other questions that have been posed over the last several days, here is a list of things that we think might be helpful to understanding important elements of both the criminal and civil sides of a crash like this one:
- Legal adults and juveniles have different rights and consequences within a given state’s statutory laws.
- Any time a prosecutor feels it’s appropriate to charge a minor as an adult in the state of Texas, the following must first occur: 1. The potential charges must be for a felony crime or crimes. 2. A judge must officially certify the individual as an adult after considering a variety of things in addition to the felony crimes alleged. (The process for Ethan Couch, the now 24 year old repeatedly convicted criminal who is best known for causing the catastrophic multi-victim fatal crash in Burleson, TX in which he killed 4 innocent people and injured 9 more while speeding while intoxicated in June of 2013 at the age of 16, is a great example of how complicated certifying a juvenile as an adult can be.)
- The involvement of a “juvenile” in any crash complicates the pursuit of justice in many additional ways; publishing their identification is definitely one of them.
- In order to open any insurance claim or file civil litigation, documentation containing multiple pieces of necessary information must first be provided to the crash victims and their legal counsel if they have it.
- Delays in the processes on both the criminal and civil sides of things are not always an indication of incompetence, injustice, or officials sweeping things under the rug. (But because our cycling community has too many first hand experiences where this IS the case, we completely understand the outrage and some of the inaccurate conclusions being made.)
- When the control of an investigation changes from one department or agency to another, there will be an inevitable delay. If those doing the hand-off made mistakes or a mess, then those taking over have even more work to do. More work triggers the need for more time.
- Sometimes, states require the involvement of multiple agencies as parts of the crash response process, all of whom may be responsible for conducting their own individual investigations. Every department and agency has their own unique internal procedures and protocols, too.
- Any competent, ethical person whose job involves pursuing and securing a just outcome for any victim of a crash (including a crash caused by a crime) will be thorough in their work. The more people involved in a specific incident (i.e. multi-victim crashes), the longer it can take to gather all the facts and relevant evidence.
- In many if not most places, crash reports (including those in which vulnerable road users are not involved) aren’t completed or available to anyone for a time period of up to 2 weeks. In Waller, Texas, the initial investigating officer told witnesses on the scene it would take “at least 10 days.” The number of crashes that have recently occurred in that jurisdiction matter as well.
- If a crime against cyclists resulting in a crash occurs in a place with a known and documented anti-bike bias, additional measures have to be taken. No stone should be left unturned and all possible challenges and/or defenses to prosecutorial and civil arguments should be considered. Identifying and addressing those things comprehensively, and certainly not prioritizing speed or the court of public opinion over the quality and integrity of the work being done, are the marks of conscientious, experienced, and competent investigators, prosecutors, and civil attorneys.
HOW TO PROTECT YOURSELF
Below are some of the things we think you should know both for your own peace of mind and protection:
FIRST, unless expressly waived in writing at the time of purchase, if you are riding your bicycle and you are victimized in a crash by the driver of a motor vehicle, you may have insurance coverage through your OWN automotive policy. Generally you cannot purchase more UM or UIM coverage than you carry in liability, so check with your automotive insurance carrier to determine what you can and cannot purchase. We cannot stress this enough: MAX IT OUT. It could be the difference between zero financial hardship and bankruptcy.
- UM stands for Uninsured Motorist Coverage. It’s the part of your policy that insures you against drivers who have no insurance or drivers in a hit and run.
- UIM stands for UNDERINSURED Motorist Coverage and it serves as the buffer between the at-fault driver’s insufficient coverage and your bank account. That means that if you’re hit by a motorist whose liability coverage is not enough to compensate you for the damages you incurred due to that driver’s actions, your own UIM coverage picks up where the driver’s liability coverage ends.
*If you have specific questions about your policy or about how to max out your UM/UIM coverage, please reach out to us at firstname.lastname@example.org and we will be happy to help!*
SECOND, there are 4 states in the U.S. that apply the antiquated rule/law of Contributory Negligence to cycling in the context of crashes. If you are riding your bike in any of these 4 states and become the victim of a crash, and it’s determined that you contributed as little as 1% to your crash, you are barred 100% from ANY civil recovery for the damages you suffer from that crash. This means that if the laws don’t allow or require it and- just to give some examples of common state bicycle laws, all of which apply to these 4 contrib states- unbeknownst to you, your rear red light battery dies after dark, or you were riding with earbuds in both ears, or your lane positioning was not AFRAP (As Far Right As Practicable), or you were not using the mandated space for bicyclists, and an irresponsible driver hits you, you are likely to be ineligible to collect a penny from the coverage available from that motorist’s insurance policy. The 4 contrib states for bicyclists are:
- North Carolina
*Bike Law’s cycling attorneys in these states (Danny Feldman, Alabama; Bike Law’s founding attorney Peter Wilborn, Maryland, Tom Bowden, associated counsel to Wilborn Law, Virginia; Ann Groninger, North Carolina) are ALL experienced trial lawyers who are extremely well versed in achieving the best possible outcomes for their clients in these states- oftentimes through litigation that goes all the way to a jury trial- and are more than happy to answer any questions you may have or assist you with legal representation should you or someone you know or love need their help after a crash or bike related incident.*
THIRD, after a crash, the following steps should be taken IF you are physically able to do so:
- Do not engage with the driver in a way that creates confrontation or unnecessary conflict. We understand why you would want to and we don’t disagree with those reasons. However, for your own physical safety, we advise that you refrain from any altercation with the driver.
- CALL 911. (Or ask someone who is on scene to do so. The driver should also call, however, we don’t ever rely on them to notify law enforcement and first responders.)
- Request/Document the driver’s and the vehicle’s information: Make, model and color of the vehicle; name; address; insurance carrier and policy number for the driver; visible damage to vehicle.
- Go to the hospital. Don’t waive medical attention. If your injuries are not emergent, follow up as soon as possible with your personal physician or GP and document all injuries in both written and picture form.
- Keep a running journal of all symptoms that did not exist before the crash.
- Do NOT repair your bike or manipulate it or its components in any way if you want to recover the value of your property that was damaged in your crash.
- Do NOT give a statement to any insurance adjuster until you are sure that you do not want or need legal representation.
- Do NOT post on social media. In the event that you want or need legal representation and an element of that requires filing a lawsuit, anything you publish is discoverable.
- Do NOT publicly identify the driver or his or her vehicle in a way that could be defined as “doxing” or considered defamatory. Not only does that open up the possibility that you could be liable for damages to the driver for saying or writing inflammatory or untrue things about them, but in the event that the consequences of your crash are litigated in court, the inflammatory public dissemination of the driver’s personal information can also be considered jury tampering.
*This is why we redact license plates sometimes. It is also why we don’t encourage “vigilante justice” after a crash. It’s not because we are “scared,” or don’t appreciate the public’s “right to know.” Our justice system is designed to protect people by considering them innocent until proven guilty. Calling someone a “criminal” before they’re convicted of a crime could be defamatory and comes with very expensive consequences.*
FOURTH, If you do not want to retain counsel, do not allow your own insurance company or the driver’s tell you that coverage doesn’t apply to you because you were on a bicycle when your crash occurred. If that happens, demand that the adjusters present you with those policies (or the proof in writing) so that you can see where your right to file a claim or claims was waived.
FIFTH, Call us. We always recommend that you reach out to us if you have a cycling related crash or need. You may not choose to retain one of our independently practicing cycling lawyers in the Bike Law Network, but you will be more informed about your rights and the options available to you after suffering a traumatic event like being harrassed, assaulted, or hit by someone operating a motor vehicle while you’re on your bike. There is no charge to you for seeking our help. We do what we do because we’re part of this community and have our own skin in the game. We’ve been protecting and representing cyclists for 23 years and are honored to be called on your very worst of days.
IT’S AN HONOR WE TAKE VERY SERIOUSLY
Contact us directly for more information.
Rachael Maney is the National Director of Bike Law / Wilborn Law. She can be reached by email (email@example.com) and phone (407-602-7088).
Charlie Thomas is the attorney of Bike Law Texas / Huber Thomas & Marcelle, LLP. He can be reached by email (firstname.lastname@example.org) and phone (504-236-6559).
Peter Wilborn is the Founder of Bike Law and practices law at Wilborn Law. He can be reached by email (email@example.com) and phone (843-491-4463).