Minimum Passing Distance Laws – Getting Police to Act on Video Evidence Part 3

Categories: Enforcement and News Update.

You’ve had the daylights scared out of by a steering wheel attendant close passing you, treating you as a pest, somehow less than human. You, however, were smart and invested in some  bike  mounted camera hardware to these passing incidents.

From the previous posts on this blog, you have worked out you have solid photographic evidence of the car’s and bike’s position on the road, thanks to paint and other markings you both passed over. You’ve marked up some screen shots of both bike and car passing over markings on the road to tell the story visually, so now it is time to document your material before sending it in.

Close passing infringements need firm evidence

Paint makings on the road captured on the video establish your position on the road beyond reasonable doubt

Is it worth my time?

Depending on how much of a perfectionist you are (and I am one) and whether the situation is simple or more complex, it can take quite a number of hours to write a close passing incident up. Here is where you need to decide whether it is worth the investment of your time.

I use the following criteria:

  • Did I feel afraid at the time?
  • Is there a sense it was deliberate or driven by impatience?
  • Did it involve a large vehicle like an SUV, truck or bus?
  • Were there other aggravating factors like speed or horn abuse?

Generally any two of the above means it’s a “go”.

“Driver: How about you give me a metre too, ya smartarse…”

In an ideal world this would not be necessary, and it would be possible to simply turn up with a DVD showing the close passing incident and have the police act. but as mentioned in the previous post it is the criminal arm of the law we are dealing with and the burden of proof is beyond reasonable doubt.

If it helps you decide whether it is worth doing, be aware the officer who investigates your case is likely to be investing at least the same if not more time, typically a minimum of 6-7 hours per incident. Hence it is not something to undertake lightly, and investing your own time up front to document the offense shows that you respect the demands you are going to place on their time.

What should my close passing complaint look like?

My formula has been developed from some early documents published by Sean Harrison, a Brisbane-based cyclist. Sean was played a key role with others in instigating the parliamentary enquiry which ultimately led to the introduction of Minimum Safe Passing Distance laws in Queensland, which have subsequently taken root in most other Australian States.

Covering letter

I start with a covering letter addressed to the officer in charge of the station, known as the Duty Officer in NSW.

  • It outlines why the officer should take the matter seriously despite there being no collision or injury this time, drawing the obvious parallel to other high risk non-contact driving offenses such as speeding, drink driving and hand-held mobile phone use.
  • The next section summarises the substance of the close passing matter in bullet point form, the focus of which is to summarise the offenses and highlight that the evidence shows it was not possible for the driver to have complied with the law – the beyond reasonable doubt test.
  • I explain why it is personally important to me (don’t want to be hospitalised by an aggressive driver again) and that I merely want to be allowed to go about my lawful business.
  • I wrap up explaining that I have put it in writing to allow them to work around their other priorities. The subtext that I am also creating a documentary trail is left unsaid.

Tell the story in pictures

Next comes the appendices to put flesh on the bones of your covering letter.

A review of your video may find other infringements. Here, the oncoming driver in the ute needs to take action to avoid a head-on collision

Police are under time pressure and have a short attention span – you need to be compelling and brief. They also have a professionally honed bullshit detector, so don’t try to gild the lily. Just tell them the facts and keep emotional language out of it.

First, an annotated screenshot from Google Maps so they can see where the incident occurred.

Next, the annotated frame grabs you prepared earlier, marked up to show the measurements taken on site and illustrate how you have calculated the passing distance from those.

Draft Police Statement

Then, the hard bit: the draft police statement. This is the piece I find most challenging. It  will have to be done anyway. You might as well win some brownie points by having a solid stab at it.

The format uses the following standard template and is a strictly factual and objective account of what happened and when, answering the questions who did what, when and where, with what pieces of equipment or other objects.

Keep interpretations out of it.

  • The only things that matter for the purpose of this document are who did what, when and where.
  • Leave it up to the officer to interpret what they mean – for example, the amount of risk posed to you or whether it was dangerous.
  • If you include interpretation or judgement, they will disregard it because you do not have pre-established credibility (for example as an expert witness).
  • That wastes mental energy and predisposes them to disregarding the remainder. Don’t do it.

Set the scene

Acknowledgement that your statement is evidence and that you may be prosecuted for giving careless or deliberate false evidence (standard wording)

Describe who you are (eg, adult female 35 years of age)

Specify date and decision to commence journey, and high level route plan

DescribeCamera on bike - rear the cameras you have fitted to your bike.Camera on bike - front

  • Make and model
  • Their position on the bike. For example, I mention that my forward lens is approximately 15mm left of centre, and the rear lens exactly on centre.
  • This becomes important later when we are establishing the position of the bike over the road markings we are going to use to prove passing distance.

Provide a detailed description of the road on which the relevant sequence of events occurs

Description of close pass or other traffic offense you are reporting

Describe in time  order the sequence of events, starting at the beginning and ending at the end.

  • Focus exclusively on what you saw, heard, and said using precise descriptive language.
  • You will find yourself using the words “I noticed that” or ”I observed” for almost every action you describe.

Your description should start shortly before the close passing offenses occurred. A good place to start would be just before you turn onto the road on which the close pass occurred, or if it was a long straight road, a couple of blocks before.

  • Specify time of arrival at section of road on which relevant sequence of events begins. If you have a Garmin GPS bike computer, I have found the Training Centre software useful for  tying up exact times. Camera time stamps can drift and become unreliable.
  • If you heard the vehicle approach, mention that along with any distinctive attributes, for example what it sounded like – performance vehicle, older model 4WD.
  • Describe the vehicle passing you in detail – for example “I observed a metallic green Holden Maloo ute with silver low profile alloy wheels and aluminium racks that had a long ladder mounted to them with yellow and black registration plates”
  • Mention the estimate you made in your head of the passing distance at the time, if you did so.
  • If you said anything, including swearing in alarm, include the words you used.
  • If you read out the registration number, mention that you did, and what you said.
    • Reading out loud the rego number is a practice that I cannot recommend highly enough as it provides extra corroboration.
    • If the event happens in low light conditions it may be your only way of being sure of the rego
    • It was sufficient to identify the vehicle for my second close pass success.
  • If you pulled up at the lights next to the vehicle and identified the driver, spell out what you said and describe the driver.
    • At this point it it isreally important to keep your calm and not be baited into an angry exchange.
    • There have been a number of close passing incidents I have elected not to submit because in the heat of the moment after having my life put at risk I got a bit sweary. Just be polite and thank them for smiling for the camera.
  • Describe what happened next – eg, vehicle drove off and changed lanes, and you lost sight of the vehicle after the intersection of whatever cross street.

Description of review of video recording.

Start with date and time you reviewed the recording. Spell out your observation of events at the close pass.

For example, “I noticed that when the vehicle passed me, we both passed over a 40km/hr speed zone marking painted on the road. The left edge of the left side tyres kissed the left edge of the black zero, and I passed through the middle of the right angle triangle side of the four.”

Or, “I noticed that when the vehicle passed me it never left the lane. The pass occurred at the exit driveway from the carpark for Dan Murphy’s liquor retail outlet on Condamine Street Manly Vale.”

The video for this close pass shows the vehicle never left the lane. Subtracting the known vehicle width and the width of the bicycle from the measured lane width showed that the pass was extremely close

Add any other observations that go to identification of the vehicle, and proving its position on the road by establishing that it touched or passed over markings on the road. Describe those markings and their relative position.

Site visit

Start with the date and time you visited the site to take measurements of the markings.

  • Specify the tape measure you used (make and model).
  • Describe the measurements you took.
    • You need to be very clear-headed about the measurements you take.
    • They need to be in a logical sequence that can be repeated should the investigating officer so choose.
    • They need to prove your accusation of the close pass – there can be no reasonable possibility of any other conclusion but that the pass was well inside the minimum.

Close passing distance calculation

Describe your calculation of the passing distance

  • For example,
    • left edge of tyres Xmm from left side gutter
    • centre of bicycle Ymm from left side gutter
    • handlebars Zmm wide
    • Passing distance P = X – Y – (Z/2) at best, not accounting for overhang of shoulders, elbows and vehicle mirrors into gap, which would reduce it further.
    • Not including the overhangs shows I am giving the motorist the benefit of these, yet the pass is still much too close.

Conclude with the comments that this shows the passing distance could not have met the minimum required – it is physically impossible for the driver to have complied.

Wrap up the draft statement

Conclude that you were disturbed by the driver’s behaviour and sent a letter, copy of the video recordings, and a draft of this statement to the police by registered mail on the date you sent it

Mention that you have removed and retained original copy of the recorded video on the original media. This scotches any accusation from the defence that you have fiddled with the video and reduces the probability they will subpoena your personal laptop if things should take a nasty turn.

Ensure you do send it via tracked mail.  You want evidence of delivery and you want to be obvious to police about that. While they have no document management systems to record inbound documents at least in NSW), doing so sends a message.

Mentioning in passing that Auspost says it was delivered on a certain date if they can’t find  it when you follow up any lack of response usefully amplifies that message without being obnoxious.

Your concluding remarks

Outline what you want to happen – ie, Traffic Infringement Notice(s) issued

Outline why this is important to you

  • driver needs education because they may do it again to someone without the means to respond through the correct channels (police complaint)
  • it’s risky behaviour that has a high probability of leading to serious consequences if allowed to continue unchecked

Include the raw close passing video

The key thing is to include the entire raw video segments, unedited, on DVD. Any suggestion you edited the video to leave things out raises reasonable doubt.

Since the Fly6 and Fly12 cameras automatically break the video into 10- and 5-minute segments respectively, I include the entire 10 or five minute segment. If the incident occurs close to the end or beginning of a segment I also include the following or preceding segment as appropriate.

I appreciate it can get expensive to do so, but I would also strongly recommend removing from your camera and preserving the original media on which the incidents were recorded.  If you use your home computer to manage your personal finances and losing access to it for several months would present a problem, you do not want to be in the position of having it subpoenaed by a snarky defense lawyer looking to inflict pain on anyone who dares to challenge his client just because they can.

Stating in your statement that you have retained the original media for  forensic analysis in the event of the veracity of the supplied copies on DVD being challenged gives you solid grounds for taking action to legally challenge the subpoena.

So now you’ve submitted your close passing complaint – what next?

Unfortunately this is not usually the end of the matter. You can get lucky – on my first submission the constable had – in a previous working life – been a video editor on SBS’s Tour de France coverage, so was very empathetic to my perspective and was simply outstanding to deal with. He even investing some of his  own personal time while on a break to knock my attempt at a Police Statement into shape. I could not have asked for more.

However, the events I’ve reported since then have required persistent follow-up.

I usually set a calendar reminder to follow up consistently, usually weekly. If you don’t, they generally put whatever other urgencies are on their plate ahead of you on the queue.

It was my experience with the second two reports that little action occurred until about a month before the offenses were about to exceed the 6-month statutory limitation, and I reminded them of that. That’s not to say that no work had been done, but contacting the driver and issuing the Traffic Infringement Notice would I feel likely not have happened without my follow-up.

Sample close passing complaints

12 June 2016 Letter

My first attempt at a draft police statement 20160612_PublicVersion

Subsequent formal police statement 20160612_PoliceStmtPublicVersion

Notice the difference in language and focus after the officer has reworked my lame attempt at apolice statement.

30 June 2016 letter and police statement

This letter is not nearly the same quality as the first. In part I wanted to test how much work I needed to do to join the dots to get police attention, and this almost caused the submission to fail, despite it being one of the worst cases of intimidation I’d experienced. The junior constable made the comment “no hit no foul” in the event log – although when I sought confirmation the police would say nothing. 20160630_InitialPublicVersion

It was not until I complained about the lack of communication and sent in a more compelling screen grab of the close passing which summarised the measurements more succinctly that Traffic got involved and provided some education to the constable, and gave her some rather direct instruction (or so I gather).

This is the follow-up letter. 20160630_FollowUpPublicVersion

I did not go into the station to sign a statement on this occasion, however action was swift. The driver was demerited for a rule 144 -1 close passing infracton, and the comment was made by the supervising officer that it seemed deliberate and the high-beaming before the pass was intended to send a message.

17 November 2016 event.

The draft police statement for this event was probably the best I had written – the investigating officer simply put the police crest on it and used it unchanged.20161117_PublicVersion

Unfortunately, though, it did not result in an infringement for close passing being issued.

Police felt the driver did not have any particular intent towards me (unlike the previous two where giving me a scare was a clear intention). I pushed back, saying that negligence kills just as effectively as road rage, but they were less comfortable with issuing the TIN and said they believed the majority of the objectives were achieved by calling the driver in and having him view the video. I elected not to escalate the matter in order to not break the rapport I had achieved with the traffic sergeant – he went from being very sceptical and distant to much more engaged and empathetic.

5 July 2017 event

The driver committed multiple offences in this close passing incident: crossing double centre lines and almost causing a head-on collision as she pulls out into oncoming traffic around a stopped garbage truck. Then, tailgating me down a fast twisty hill, crossing the unbroken white edge line multiple times into the bicycle shoulder lane, and finally close-passing me in a “punishment pass” to get ahead one car length to the SUV that had been holding me up in turn.

The irony of demanding I use an unsafe door zone bike lane so that I’m not in her way, while intruding into it on every left hand bend flies completely over her head.

This one is still open, so I’ll add it here when I know the outcome.

So that seems like a huge amount of effort…

… and indeed it is.

However, with NSW having the most draconian and heavy-handed cycling laws in the world, something needs to be done.

The additional penalties that were implemented along with the safe passing laws have resulted in cycling trips for commuting purposes falling by more than 25% in the last year.  http://www.smh.com.au/nsw/cycling-fines-soar-in-first-year-of-harsher-penalties-in-nsw-20170801-gxn311

Further, the same article quotes sources indicating the injury count  has dropped by around 6%, meaning the serious injury rate for the remaining riders has gotten worse by ~19%, not  better.

What would be nice is if the NSW Police along with the other states took a more proactive approach.

West Midlands Police get on the front foot by mounting sting operations and driver education.

If West Midlands Police in the UK, followed by The Met in London and the Irish Garda can mount close passing sting operations that put cyclist safety front and centre, I don’t understand what is getting in the way of our local forces doing the same, except a lack of political will.

https://www.theguardian.com/environment/bike-blog/2017/mar/09/too-close-campaign-cyclists-safe-driver-overtaking-police

Prosecuting drivers is most effective way to improve cyclists’ safety, say West Midlands Police

In the meantime, we  do what we can with what lies close at hand.

 

 

 

 

 

Comments

  1. Excellent write up. I look forward to minimum passing legislation coming into effect later this year in WA.
    I hope I don’t need to use this as a reference, but given my experiences so for I suspect it is an inevitability.
    Thank you very much for making it available.

  2. Toby

    Many thanks for this, especially the end – about changing driver behaviour. Maybe that is what it takes, force people to be more accepting, and then eventually they will of their own accord.

    • John Hawkins

      I think it is. Education alone is not enough. Regrettably, for a certain sector of the population the stick is needed as well.

      It was much the same with anti-discrimination laws when they were introduced.

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